The Politicization of the Supreme Court

While the Supreme Court likes to think of itself as apolitical, in reality it is anything but.  We have only to examine the most politically charged cases that they have decided with narrow majorities for evidence.

If the Constitution were clear on all matters, all decisions would be 9-0.  In fact, cases that are clear constitutionally rarely make it to the Supreme Court at all.  Since their decisions are rarely unanimous, we must assume that the Constitution is, in many cases, an ambiguous document and can be interpreted in several ways.

So we are left with examining what factors go into these interpretations.  Since original intent cannot be definitively known – this, too, would lead to 9-0 decisions – justices are left to interpret the Constitution using several criteria:

• The definitions of terms and phrases
• Their beliefs
• Their ideology
• Their sense of morality/ethics
• Their understanding of the mores of the day

Interestingly, these are the same factors that go into defining an individual’s political persuasion.  My beliefs, my ideology, my morals and ethics, and my understanding of the current customs and conventions of the community of which I am a part all serve to define my political position.

When politics enter into a debate, some people will benefit and others will be harmed.  And while the Constitution tries to ensure equal rights for all, we often see the rights of some winning out over the rights of others.  My right to free speech could be drowned out by your right to free speech if you have millions of dollars to have your opposing voice heard more loudly, by more people and for a longer period of time.  My right to freedom of religion could be trumped by your right to a free press.  My right to life, liberty and the pursuit of happiness could be supplanted by your right to bear arms.

The current health care debate is a perfect example.  We have universal health care now; everyone who needs care, gets care.  What we don’t have is a universal system of payment for health care.  In situations where the rights of some are pitted against the rights of others, one group of citizens is going to be adversely affected by the outcome.

We can see this debate played out across many issues.  Affirmative action, free speech, campaign finance, reproductive rights, church-state separation, redistricting, voting rights, and Bush v. Gore have all been cases where the rights of some have been weighed against the rights of others.  And in cases like these where the lines are not clear-cut constitutionally, the outcomes must be dictated by the above criteria, and as such are politically based decisions.

The final evidence that the Supreme Court is a political body lies in the appointment process.  Advocates on all sides of the political spectrum line up to support or oppose candidates for the judiciary based on their politics and what they presume are the politics of the nominees.  And while they decry the use of litmus testing in the selection, they are all engaged in it, examining the beliefs, ideology, and ethics of each applicant.

An apolitical body can not come out of a political process.

Reforming the Justice System

“Justice” is one of those buzz words used by both the left and the right when discussing reform of the prison system.  The left uses it to talk about the rights of the accused and those who depend on him or her; the right invokes it when talking about the rights of victims, communities and society at large.  Since most of us fall into one of these latter groups, the conservative argument usually wins the day.  Fear almost always trumps other emotions.

The rationale for incarceration seems to be some combination of Punishment, Retribution, Protection, and Rehabilitation, in that order.  We punish the perpetrator for their crime, exact a measure of revenge for the harm they have done to society, and protect the members of the community that have been victims – or could be in the future.  Right now, our system goes through the following sentencing logic:

1. Determine what level of punishment can/should be imposed on the person
2. Adjust it based on how the crime is perceived by the victims and society at large
3. Decide how to best protect the health and safety of the community
4. And, given the above, agree on what effort should be expended to rehabilitate the person

This approach places much of the responsibility for rehabilitation on the shoulders of the penal system.  Factors such as cost, human resources, time, and facilities available serve to define, and in most cases limit, the amount of effort we expend towards making sure the criminal does not re-offend.  Under the above process we spend first on prisons and oversight of criminals (est. $68.7B), second on police and DHS protection (est. $62.4B), third on restitution (est. $4B), and last on rehabilitation (est. $3.44B).  Since corrections budgeting is at best a zero sum game, the more people we incarcerate, the fewer dollars we have to invest in rehabilitation.

The second challenge with rehabilitation is that society demands a near perfect track record.  Unless officials can guarantee that a criminal is reformed and will not re-offend, rehabilitation doesn’t get the support it needs to be effective.  And without public support, it cannot possibly reform all the individuals that are likely to be successful in a program.

It’s not that we don’t know how to rehabilitate some criminals.  People who are first time offenders; who commit crimes of passion, desperation or unfortunate circumstance; who can find meaningful work and a good place to live; and who have supportive communities are generally excellent candidates.

To be successful we have to dedicate ourselves to identifying these individuals at sentencing, incarcerate them away from hardened criminals, and make sure they get the training and support they need to re-enter society.

This means that we have to re-order our priorities when meting out justice.  Instead of punishment as the chief arbiter, we should place rehabilitation at the top of the list:

1. Does this person have a reasonable chance at rehabilitation?
2. If yes, and this person is rehabilitated, will the community be safe?
3. If yes to both the above, does society benefit by rehabilitating this person?
4. Given the answers to the above three questions, what punishment should we impose?

I realize this approach may provoke outrage in some.  But a careful examination of the priorities shows that the system will still put the most violent and likely to re-offend criminals behind bars.  In fact, this approach puts those criminals who are most dangerous in prison for potentially longer sentences than those imposed by the current system of sentencing guidelines.

What it does is lower costs by reducing the prisoner population, maximizes the number of productive citizens that are contributing to their communities, and minimizes the rates of recidivism.  This in turn, reduces our need for protective services like police, cuts our insurance rates, lessens the costs to victims of crime, and increases our tax revenues.

Whatever your position on justice, we must all admit that the current system isn’t working.  We have the largest prison population of any developed nation, and we spend less per capita on rehabilitation.  It’s time to try a new approach; one that works harder to make law-abiding and productive citizens out of our offenders.

The Reality of Democracy

We have a habit in this country of promoting democracy and then disapproving of the outcome.  In the last few decades this pattern has been repeated in places like Palestine, Egypt, Venezuela, Nicaragua, Iran, Iraq, Ecuador, Peru, and Bolivia.

Now some could argue that in some cases this isn’t democracy but the manipulation of democracy to serve a minority.  After all, in a democracy the majority rules doesn’t it?  But they conveniently ignore that in the U.S. with just 100 million out of about 222 million eligible citizens voting, elections are decided by a minority of only 23% of the citizenry in close contests.  That’s hardly majority rule.

We are all indoctrinated from childhood to believe that democracy is fair and equitable.  But by definition, it must always oppress a minority, and so it is really just the best system of governance we have.  The only way to improve it is to register the entire population and get them to the polls.  Yet even then the minority will be oppressed, albeit a larger one.  To paraphrase Lincoln: we cannot satisfy all of the people all of the time.

Some have argued that 100% participation would only serve to elect people who are incompetent.  They believe that what we have now is a core group of informed and involved voters and the rest of us are either ignorant, ill-informed, or so disconnected from the process that we can’t possibly make good decisions.  No attempt is made to educate and reconnect the citizenry to the franchise of voting.

This is hardly an observation that favors socialism or anarchy.  That so few of us vote may, in fact, contribute to the stability of our country.  If we had 100% turnout in a close election for President, instead of 50 million people feeling disenfranchised we could have twice that many, enough to form a critical mass that could agitate against the process.  Instead we have 120 million non-voters that are willing to go along with what the voters decide, and this may be a key factor in our stability.  That complacency puts those whose candidates lose in a distinct minority, and may keep tempers and actions in check.  “If you don’t vote, you can’t complain” may be key to our durability as a nation..

If democracy is a system that favors the “majority,” it must, by logical extension, be a system that also oppresses a minority.  In reality, political systems fall into one of two categories:

1. A system that oppresses most of the citizens
2. A system that oppresses as few citizens as possible

The former is easy to recognize, and can be found in places like Myanmar, Uzbekistan and Zimbabwe.  They tend to be oligarchies, monarchies, autocracies, plutocracies, or aristocracies.  Socialism and Marxism, however well intended at first, have always descended into one of these.  And anarchy, as much as those who espouse it would protest, ultimately results in citizens infringing on the rights of others.

Democracy, for better or worse, is the only system to fall into the latter category.  For now, it looks like the best system we have.  But let’s not delude ourselves into believing that it is perfect.

If Slavery Had Never Happened

If we had the power to go back and change the history of this country, what would we change?

First on my list would be to prevent slavery and the forced importation of Africans into this country.

Likely as not we would have avoided the Civil War, the bloodiest war in American history.

Just as certainly we would give up Jazz, the Blues, R&B, Rock and Roll, Hip Hop and almost every genre that produced the sounds that today are so quintessentially associated with American culture.

We would lose the rich voices of people like Langston Hughes, Ralph Ellison, Toni Morrison, and Maya Angelou.  Books such as To Kill A Mockingbird.  Uncle Tom’s Cabin.  Huck Finn.

The scientific community would never have had George Washington Carver or Benjamin Banneker.

We would have missed the contributions of intellectuals like Booker T. Washington, Frederick Douglass and W.E.B. Dubois.

We might still have Barack Obama, but he would not have married Michelle Robinson.

No Willy Mays or Shoeless Jackson.  No Wilt Chamberlain or Michael Jordan.  No Thurgood Marshall or Barbara Jordan.  No Bill Cosby, Will Smith, Morgan Freeman or Denzel.  No Sidney Poitier, Count Basie, Duke Ellington, Paul Robeson or Billy Holiday.  No Ella, no BB, no Aretha.  Harry Belafonte’s contributions to the world might have been limited to his music.

Dave’s magnificent pottery would never have been thrown.

Martin Luther King Jr. would never have walked among us; by the same token, we may not have needed him.  Or Ralph Abernathy, Rosa Parks, Medgar Evers, or Malcolm X.

I would have been willing to pay the price, but I also relish what that heritage has brought us.  I cannot imagine what this country would be like today without their contributions.

Why We Pay Taxes

People are missing the point about taxes and why the rich should pay more.  Taxes serve two functions:

1. To fund the government so that it can provide the services that are most efficiently and effectively done centrally

2. As payment for the privilege of living and working in the state and country of this, the greatest nation

To the first point, items like law enforcement, defense, education policy, health care, energy production and management, the coordination of relationships between individual states, and relationships with other nations need to be managed by a single entity.  To have each state negotiate, coordinate and manage these efforts on their own is wasteful and redundant.

To the second point, we all benefit from living in the United States, even if we are unemployed, poor, and undereducated.  For proof we have only to look around at the conditions that the poor and disenfranchised live under in other countries and we can see that our least advantaged citizens fare better here than they would in many other countries.

We all bear a responsibility for, and benefit from, what this country provides for its citizens.  At one end of the spectrum, starvation is rare, and few of us lack drinking water and shelter.  At the other end of the spectrum, we provide the environment in which people can prosper through hard work and determination (and sometimes, dumb luck).  That environment includes the embrace of free market capitalism; freedom of expression, speech and the free exchange of ideas; freedom of spiritual (some might say religious) pursuit (or not) as one pleases; the freedom to grow (literally and figuratively) as individuals and a society; and freedom of mobility that allows us to chase our dreams wherever they may take us.

But there is a cost to those privileges:

When there is tension between the needs of the few and the many, the many must prevail.  This is the price we pay for avoiding dictatorship and oligarchy, and for having a military that is subservient to civilian rule.  It is why we have anti-trust and anti-corruption regulations.  It is why we are a nation of laws, not anarchy.  It is why we adhere to Biblical admonitions to care for the poor.

We must be willing to hear, consider and act on the ideas and opinions of others.  Gridlock and entrenchment limit progress and growth.  Cooperation and a willingness to try new things are cornerstones to peace and prosperity.  Where would we be if people had rejected once radical ideas like democracy, mass production, farming (as opposed to hunting and gathering), and collaboration?

For the rich to earn their riches, they must stand at the back of the line.  When you buy a TV set, you go into a store, pay your money, and walk out with a new set.  The workers who built the set have already been paid, the shippers who transported the set have been paid, and the clerks who displayed the set and placed it in the back of your car have been paid, all before you made your purchase.  The factory and store owners only make money when they make the sale, and for that risk they deserve the highest reward.

If the rich were at the front of the line, as Trickle Down economists insist, the process would be reversed.  You would pay your money; the store owner would take a cut and send the rest to the factory.  The factory owner would take a cut and send some to the workers who build the set.  The rest would go to the shipper to deliver your new set, and to the retail employees to load it into your car.  That would be insane.  Economies trickle up, not down.

In order to maximize individual and national prosperity, all Americans must reach their potential.  This means that education and opportunity must be maximized for each one of us.  In order for economies to trickle up to their fullest potential, all of us need to be producing as much as we can, adding value to the economy.  And this requires that we all receive an education commensurate with our aptitudes, and opportunities in line with our skills and abilities.  Only under this scenario will the rich get even richer, the poor move into the middle class, and the middle class get to improve their positions.  Anything less is a recipe for decline.

The more one benefits from the privileges, the more one owes.  What all this boils down to is risk reduction.  Living in the U.S. ensures that our intellectual capital is protected, our security is assured at home and at work, our food and water supplies are safe, our workforce is ready and available, our markets are able to afford our products and services, and our ability to come up with the next best thing is nurtured.

These privileges should not be taken for granted nor should they be free.  They should be paid for commensurate with the degree to which we benefit.

The Power of Two

If you deposit a penny in the bank and make a deal where they will double your account every day for a month (31 days), you will earn more than $10,700,000.

So let’s suppose for a moment that one black and one white person agree to send each other one letter or email a month on the topic of racism.  Each month they also agree to recruit just one person each, who begin their own conversation about race.  And they, in turn, recruit two more people each month to begin a dialog.

The first month there will just be two people.  At the end of the second month, there will be four.  In 6 months, there will be 64.  At the end of the first year, there will be 4,096 people, all engaged in correspondence about race.

Assuming no one backs out, at the end of the second year – just 24 months into the effort – there could be close to 17 million people writing their counterparts.  Two months later virtually every African-American man, woman and child could be engaged in the conversation.  In 28 months, the total reaches over 268 million, more than the entire adult population of the U. S..  If everyone keeps up the effort, the number reaches 8 billion people in just 33 months – less than three years – exceeding the entire population of the planet, and the dialogs could be far-reaching.  Racism, women’s issues, homosexuality, geopolitics, the environment…the results could be transformative.

Just two people are needed to begin this revolution.  Will you be one of them?

Recovering From The Legacy Of Slavery

150 years after the supposed end of slavery, we find that it still shapes the way most African Americans and Caucasian Americans think about, and act around, each other.  We – at least those of us that believe in evolution – tend to forget that our ancestors were all Africans, and slaves and their descendents are our relatives, albeit many times removed.  Belief in social justice and the application of good manners have gotten us all this far, but we are now essentially stuck, whites not knowing how to get beyond slavery and blacks not knowing how to heal from it.  Whites try as hard as they can not to offend blacks, and blacks see much of their lives through a lens of racism.   Both are on tenterhooks.

So here we are, stuck in the middle of the seven stages of grief:

1. SHOCK & DENIAL

When Africans were put on slave ships, they must have experienced the first stage of grief.  Sold, in some cases by their African friends or enemies, they likely suffered from some form of PTSD; shock at what was being done to them and denial that anyone could do such a thing.                                                                                           

2. PAIN & FRUSTRATION

As the shock of slavery wore off, it was replaced by unimaginable pain and suffering.  While I would in no way condone the institution of slavery, the roots of American culture were sown in the pain and grief of slaves and former slaves.  African and African American contributions to American art, music, literature, science, medicine, law, the humanities, and architecture have made us what we are today.  I find it ironic that peoples brought here against their will ended up defining our lives and our culture.

3. ANGER & BARGAINING

Frustration gave way to anger, especially when Emancipation turned out to be a sham.  For decades after the Civil War, African American anger burned, held barely in check by the forces of violence and economics.  These forces served to enslave peoples just as effectively as shackles forged of iron and steel.

When anger didn’t produce the desired results, African Americans and their advocates began to bargain for freedom and equality.  No one embodies the conflicting eddies of the transition from anger to bargaining more notably than Malcolm X, and no one reflects the bargaining position more clearly than Dr. Martin Luther King.  But thousands of others also deserve the credit – and tributes – that have been heaped upon these two iconic men.

4. DEPRESSION, REFLECTION, LONELINESS

 And so here we are, stuck between stage three and stage four.  Whites think African Americans should be getting on with their lives.  African Americans need closure and can not find a way to get it.  No amount of dialog can help the children of former slaves “get over it,” and no amount of reparations are sufficient to make up for past and ongoing repression.  We are poised to finally come to grips with the true magnitude of the loss and suffering, but no one can clearly articulate a path along which we can all move forward.

The conversation needs to be about where we are and what it means, and there is no work being done to determine and implement solutions.  The reason: we are trying to find global relief to individual pain.  Only through a one on one dialog between individual black and white people will we begin to understand and accept each other.   Until every white person truly understands what it’s like to be black in America, and until every African American believes that whites do “get it,” we’ll be stuck right here.

5. THE UPWARD TURN

In truth, a large part of the answer lies with education.  Only through education can we build mutual respect, achieve economic equality, understand and appreciate the history and plights of others, and find the common ground that will enable all of us to come together.

But education is too often used as a tool to keep us from repairing the rifts between people.  Basing education funding on local taxes, and the act of educating on teachers willing to work in the community, we ensure that poor schools stay poor, that disadvantaged students stay disadvantaged, and disenfranchised communities stay disenfranchised.

The myth of equal school funding as a panacea is just that: a myth.  What equal funding does is maintain the status quo, keeping good schools good and bad schools bad.  We need reparative funding: resources allocated to the poorest schools that will lift their students out of poverty, give them hope and fulfill their dreams.  While some descry this as socialism, they do so only to deny the have-nots access to the American Dream.  They who protest have a vested interest in perpetuating what amounts to an American caste system.

The second key is to teach whites true black history.  Not just a module or two during Black History Month, or mentions of George Washington Carver and Booker T Washington in history books, but a fully integrated curriculum.  And that includes Native Americans,  Hispanic Americans, and Asian Americans.

Whites have been educating black people for a long time…it’s time for black people to educate whites.

6. RECONSTRUCTION & WORKING THROUGH

 Equal education (as opposed to equal schools) is the foundation on which we can finally abolish our caste system.  Equal primary and secondary education that treats all contributions by all races, genders and ethnicities as equals will level the playing field when applying to college and for jobs.  It will form the basis for a dialog among and between us, mutual respect, and create equal opportunities for economic growth.

Only then can we aspire to engage each other in working through our issues and reconstructing the country around the words and values espoused in our Declaration of Independence and Constitution:

• that all men (and women) are created equal,
• that we are endowed by our Creator with certain inalienable rights,
• that among these are life, liberty and the pursuit of happiness, and
• that together we can form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty for ourselves and our posterity.

7. ACCEPTANCE & HOPE

During this, the last of the seven stages we learn to accept what has happened to us as a country and agree to move forward together.  But accepting reality doesn’t mean that we all find joy and happiness overnight.  Given all that we have been through, it will take time.

Which is where hope comes into the picture.  Lin Yutang once said:”Hope is like a road in the country; there was never a road, but when many people walk on it, the road comes into existence.”