Book Review: “The Black Count” by Tom Reiss – posted 3/1/2015

March 1, 2015 Leave a comment

Tom Reiss’s book The Black Count can be read as an adventure story, a biography, or a history of slavery and the French Revolution. I confess that I did not read the book. I listened to the book on tape going back and forth to work. It grabbed me so much that I did not want to turn it off when I got to work. It was one of those rare books you did not want to end.

The book tells the story of French General Alex Dumas, the father of the writer Alexandre Dumas who wrote The Three Musketeers and The Count of Monte Cristo. General Dumas was the son of a black slave mother and a fugitive white French nobleman. I do not think it is exaggerating to say that the son worshiped the father. General Dumas was a a figure of remarkable heroism and accomplishment.

While, as I pointed out, there are different ways to look at this wonderful book, I wanted to discuss it because of the picture it presents of slavery and the French revolution. The book educated me about both. Even though I was a history major in college and have always loved reading non-fiction, there are plenty of gaps in my knowledge. Reiss does a tremendous job of recreating the French revolution through the life story of General Dumas.

With the French revolution as background, he shows the historical struggle in France and the colonies around the issue of slavery. General Dumas provides a perfect vehicle to tell the back and forth anti-slavery struggle. The General went through some very heady highs and some extremely tragic lows.

As an American, I admit to less awareness of the international dimensions of slavery. History here is so much about what happened in the U.S. only, with less curiosity about the rest of the world. Reiss’s book presents a broader, more cosmopolitan view, which allows the reader to see the American anti-slavery struggle within the context of a broader international anti-slavery struggle.

Reiss shows that in the 1750’s, during the reign of Louis XV, a generation of crusading French lawyers fought the powerful colonial sugar lobby to establish rights for people of color. Reiss calls this the world’s first civil rights struggle. I never heard about this. It is inspirational to know that there was a tradition of pioneering and creative lawyers in the 18th century who used the law to fight this most fundamental form of oppression. Reiss writes:

“Slaves taken to France from the colonies brought lawsuits against their masters and won their freedom. (Compare this with the infamous Dred Scott ruling of the U.S. Supreme Court, which – in the 1850’s – would find the Blacks were “so far inferior that they had no rights which the white man was bound to respect”. The ruling actually contains language mocking the French freedom trials of the previous century.) The French lawsuits were decades earlier than the Somerset case, which launched abolitionism in England.”

Through the Dumas story, Reiss demonstrates that the French revolution opened doors of emancipation for millions of people and greatly broadened horizons for those who had been enslaved. This is a different perspective than the one Americans typically hear with the focus almost always on the Terror. I think more than the American revolution or the British abolitionist struggle, it was the French revolution that expanded notions of freedom.

Reiss does not whitewash the Terror period of the French revolution but he puts it in a broader perspective. I am reminded of a quote from Edward Abbey:

“The “Terror” of the French revolution lasted for ten years. The terror that preceded and led to it lasted for a thousand years.”

The French had a notion that they were the land of the free. Reiss says that the French enlightenment philosophers liked to use slavery as the symbol of political oppression. He quotes Rousseau: “Man is born free but is everywhere in chains.” French lawyers nobly took up numerous cases on behalf of slaves who arrived in France.

I would not minimize this struggle. France had its own set of racist laws, the Code Noir, which applied in the French colonial empire. Reiss shows that while French lawyers won many victories inside France, there were contradictions between law inside France and in the colonies. There were also plenty of racist laws in France itself.

In 1777, King Louis XVI decreed the Police des Noirs. The goal of this code was “to extinguish the race of negroes from the Kingdom”. The Police des Noirs established “depots” – prisons, really – to hold blacks and people of color brought onto French soil. This was a strategy to try and get around the 50 years tradition of freedom trials. The King wanted the depots to be considered “extraterritorial” and not French soil. The Police des Noirs also included laws which called for rounding up all slaves who entered illegally before 1777, removing them to the depots and deporting them.

Other racist laws required colored people living in Paris to carry a special certificate, kind of like happened during apartheid in South Africa with identity cards. Whites were forbidden from marrying blacks, mulattos or people of color. Reiss says that the weak monarchy did not administer the race laws efficiently. It sounded like these awful laws only received infrequent enforcement.

Reiss then shows how in the early days of the French revolution, there was an unleashing of rights. In August 1789, the Declaration of the Rights of Man and of the Citizen, penned by Lafayette with help from Thomas Jefferson, passed the National Assembly. The Declaration was very much an Enlightenment document, recognizing rights to liberty, property, safety and resistance to oppression. It stated all citizens were equal .

In April 1792, the National Assembly extended full citizenship to free Blacks and men of color. While not the same as abolishing slavery, it did put the revolution much more on the side of people of color. Not surprisingly, General Dumas and other free blacks, felt even stronger cause to support and defend the revolution.

General Dumas was a passionate revolutionary. The revolutionary ideology of that time, French republicanism, opposed the divine right of kings and favored representative government. The revolutionaries wanted a constitution and an elected leadership. Dumas, who had had an illustrious military career, became a general during this period. He had started at the bottom. His strength, bravery, leadership, swordsmanship, and military skills earned him the high position.

In February 1794, the French government voted to abolish slavery. It was the first government in history to abolish slavery. This was 69 years before Lincoln issued the Emancipation Proclamation. Candid observers of the United States must acknowledge how far behind we have been as a country on matters of race although we like to posture about our advances.

Answering every call, General Dumas made many military contributions to France both during the Reign of Terror and during the political ascent of Napoleon Bonaparte. Reiss shows Napoleon to be an absolute scoundrel and a full fledged counter-revolutionary opportunist who hid his power hungry personal agenda. Reiss accurately described Napoleon’s rise as the replacement of a revolution with a king.

When Napoleon seized power eight years after the abolition of slavery, he proceeded to reverse all the gains of the anti-slavery movement. Napoleon received support from a coalition of slavers and exiled plantation owners. As Reiss notes:

“It’s worth repeating that the greatest emancipation in history had been initiated by the country possessing perhaps the world’s most lucrative slave empire.”

General Dumas lived to see the horror of Napoleon reinstating race laws and allowing only whites to command. Napoleon even forbade all officers and soldiers of color who had retired or been discharged from the army from living in Paris.

After not helping Dumas who had been imprisoned returning home from a military campaign, Napoleon ignored all entreaties for help from Dumas and his wife. General Dumas died in 1806. Napoleon and his government denied a military pension to the Dumas family after the General died causing them major financial hardship. Napoleon also made it impossible for Dumas’ son to be accepted in a military school or civilian college. Reiss says that this extremely shabby treatment fueled the son’s passion to write.

The French example is instructive on how battles against racism and slavery can go backward and forward. Unfortunately, neither the French nor the U.S. has figured out how to advance the anti-racist struggle in our current historical period. In the United States we are living through a blind period where we kid ourselves about being colorblind. France does not seem any better. It certainly has failed to address the issues of its underclass. Much more could be said but I will save that for another day.

This book is rich on many levels. Although in my review I focused on the history, I did want to mention that it is genuinely touching as a personal story with detailed vignettes. The son Alexandre Dumas adored his father and much of his work can be seen as a tribute to a beautiful and beloved man.

In closing I did want to note that there had been a statue in Paris of General Dumas. During the Second World War, the Nazis who were occupying the city, destroyed the statue. To this day, it has not been rebuilt.

Book Review: ” The Last Holiday A Memoir” by Gil Scott-Heron – posted 2/22/2015

February 22, 2015 1 comment

When my friend Howard told me about Gil Scott-Heron’s posthumously published memoir The Last Holiday, I did not know what to expect. I had not known he had written a memoir as well as a couple of novels. I had always loved Gil’s music.

Because of Gil’s political songs, I speculated that the memoir might be a political book. While Gil’s politics figure in, the book is much more a personal reminiscence about family with vignettes from various points in his life.

The good news is that Gil writes really well. The book is not conventional. I think it has a jazzy, riff-like quality. While it is somewhat chronological, Gil does jump around and there are many gaps and unanswered questions. Early in the book, Gil says the following:

“I have not always been proud of everything that has happened or that I have done throughout my life. But I consider myself fortunate. I was raised by two women – my mother and grandmother – who were both dedicated to my well-being and did everything they could to make sure I had every opportunity to succeed in life. They were dedicated to my book learning and were examples of what I should try to be as an adult and as a gentleman. The mistakes have been due to my own poor judgment both of people and circumstances.”

He doesn’t whitewash his problems but he doesn’t discuss them either. It is hard not to think about the tragedy of his early death. I don’t pretend to understand. I know he had big substance abuse issues and he did some time for possession of cocaine,possession of a crack pipe and violation of a plea deal. The drug charges dogged him until his parole in May 2007. And this was the person who wrote Angel Dust and The Bottle.

As I mentioned, there were some questions not addressed. What steps, if any, did Gil take to address his substance abuse issues? It appeared to have totally messed him up. In his personal life, none of his relationships lasted. He had three failed marriages and three children. He does write about his difficulty loving anyone and his resulting isolation. He describes a stroke he had in 1990. The circumstances of his death remain murky. He was apparently HIV positive. That is not mentioned in the book.

The book has a positive message though. Gil writes:

“We all need to see folks reach beyond what looks possible and make it happen. We need more examples of how to make it happen. We will all face difficult circumstances along the way that will challenge our self-confidence and try to disrupt our decisions about the directions we wish to choose.
I hope this book will remind you that you can succeed, that help can arrive from unexpected quarters at times that are crucial.”

Stevie Wonder plays a major role in the memoir and I think Stevie helped Gil enormously. Gil greatly admired Stevie and he traces Stevie’s musical growth. He performed with Stevie and the book includes a lot about Stevie’s long struggle to create a national holiday for Dr. King. Gil was very much a part of that. In the 80’s he sometimes opened for Stevie and toured with him. His love for Stevie and his appreciation for the joy Stevie’s music unleashed is pretty transparent. He includes some poems about Stevie. I like this one:

“That meant the harmonica on “Fingertips”
Was no sooner settling on Stevie’s lips
Than what inevitably came to their mind
For some reason was that the brother was blind.
Which obviously didn’t mean a helluva lot
‘Cause it said what he didn’t have but not what he got.
His music hit a certain chord
And moved you like the pointer on a Ouija board
Your feet made all of your dancing decisions
And didn’t give a damn if he had X-ray vision.
So why was it that people always remarked
“He’s blind” as though Stevie was condemned to the dark?
Suppose you looked at it the opposite way:
They had 20/20 vision and still couldn’t play.
And when they danced seeing didn’t help them keep time
And things like that made me wonder just who was blind.”

Gil tells some good stories about his experiences in school and college. Gil got recruited to go to Fieldston, an elite private school in New York and he does a good job describing the distance that Fieldston was from his everyday life. His mother got very sick the day of his interview for the school. He had to leave abruptly but he handled the interview committee so impressively and respectfully that he got accepted. Later he tells a story about a a conflict he had with a music teacher who had it in for him. Gil was written up and disciplined for playing the Steinway piano at the school. Gil does a beautiful job of conveying the disciplinary meeting. His mother came to the school to participate in the meeting. She deftly defended her son in a polite but most effective fashion.

Gil had anything but a traditional academic career. He went to Lincoln University and later John Hopkins for grad school. School always seemed to come second to creative pursuits.

He was such an important voice on a wide range of issues. Racism and anti-apartheid – think “Johannesburg”. Nuclear power – think “We Almost Lost Detroit”. Ronald Reagan – think “B Movie”. My favorite may be “Winter in America” which still seems so apropos.

While he is sometimes recognized as a precursor of rap because of his eloquent use of the spoken word, I don’t see anyone around filling his unique niche. Gil was a very accessible artist and he had a great talent for communicating his politics poetically to all kinds of people.

I would also mention he tells a bunch of entertaining stories about hanging around with celebrities. He was around Bob Marley, Kareem Abdul Jabbar, and Michael Jackson. You get some sense of what they were like.

From the memoir, it sounded like his personal hero was Thurgood Marshall. Surprisingly, he mentions Marshall a number of times. He clearly believed that to change America you had to change the law.

Check out this fine book. I expect it will change and deepen your perspective on Gil. I wish we had him now to be talking and singing about the world, its contradictions and absurdities. When I heard John Legend and Common sing “Glory” at the end of the movie Selma, I thought “WOW!” We need more of that. Gil brought that kind of power. His voice is so missed.

A Sham Challenge to Obamacare – posted 2/15/2015 and published in the Concord Monitor on 2/25/2015

February 15, 2015 1 comment

This piece appeared in the Concord Monitor on 2/25/2015 under the title “Just How Low Can The High Court Go?”

Probably, if you are like me, you were surprised to learn that the U.S. Supreme Court had accepted another case about Obamacare. Wasn’t that settled before when the Court ruled the law was constitutional? Isn’t this deja vu all over again?

Well apparently not. In a highly unusual move, the U.S. Supreme Court accepted the case, King v Burwell, for briefs and oral argument. The oral argument is March 4 and a decision is likely at the end of the Court’s term in June.

The reason this was unusual is that typically the Supreme Court will not hear a case unless there is a split in the federal circuit courts. That was not true in this situation.

The federal circuit courts who had addressed the issues raised have found against the plaintiffs The Supreme Court scooped the case up before the full D.C. Circuit Court had a chance to rule on it. A divided 3 judge panel on the D.C. Circuit had ruled in favor of the plaintiffs initially, but the full D.C. Circuit vacated their opinion and was widely expected to support the law.

One can only speculate on the reasons why the Supreme Court grabbed the case prematurely. It appears to be the worst kind of judicial activism, conservative variety. After a generation of people on the Right whining about liberal judicial activism, the Supreme Court is demonstrating that a right wing court can aggressively flex judicial activist muscles too.

At issue in King v Burwell is one four word phrase – “established by the State”. The plaintiffs argue that Americans who live in states, including New Hampshire, that decided to use the federally facilitated marketplace are not entitled to financial assistance. They say that Congress only intended for Americans to receive insurance subsidies through state exchanges.

Their case rests on the interpretation of an isolated phrase in the context of a much longer, comprehensive statute.

It is stating the obvious but the Affordable Care Act was designed to make health care coverage affordable for all Americans, regardless of their state of residence. Providing financial help to low and moderate income Americans is the law’s key method for making insurance premiums affordable.

Under the Affordable Care Act, every state is required to have a marketplace to help Americans shop for affordable coverage. While states can set up a marketplace themselves, the law directs the federal government to set up exchanges in states that do not.

The drafters of the law wanted the federal exchanges to be the same as the state exchanges. Regardless, these states would still get an exchange, just a federally facilitated one.

So where did the case of King v Burwell come from? A recent article by investigative reporter Stephanie Mencimer of Mother Jones Magazine sheds some light. A group of conservative lawyers hatched the legal theory behind King v Burwell at a 2010 conference sponsored by the American Enterprise Institute. The lawyers at the conference had one goal: develop a theory that could kill Obamacare.

A libertarian think tank, the Competitive Enterprise Institute, which is funded by the Koch Brothers, tobacco companies, oil and gas firms, big pharmaceuticals and conservative foundations, bankrolled the case.They also worked to recruit plaintiffs. At the 2010 conference, Michael Greve, the chair of the Competitive Enterprise Institute was widely quoted as saying the following about Obamacare: “This bastard has to be killed as a matter of political hygiene.”

The Competitive Enterprise Institute found four plaintiffs. A real problem is that it is almost impossible to show that any of them have suffered any harm as a result of Obamacare. A victory for the plaintiffs would mean they would end up with the right either to pay more for their health care coverage or to go uninsured.

It remains to be seen whether the Supreme Court will consider the matter of whether the plaintiffs do, in fact, have standing to sue. In separate investigations, the Wall Street Journal and Mother Jones have both raised serious questions about the plaintiffs and whether there is actually a case or controversy here, which is a jurisdictional requirement.

Two of the plaintiffs appear motivated by hatred of President Obama. One has called him the “anti-Christ” and said he won election by getting “his Muslim people to vote for him”. The other referred to him on Facebook as “the idiot in the White House”. When asked what he got out of this case, he replied that the only benefit he would receive from the case was the satisfaction of smashing Obamacare.

The tragedy of King v Burwell is that success for the plaintiffs could wipe out health insurance for millions. It has been estimated that over seven million people could lose their health insurance in the 34 states that did not establish their own exchanges.

New Hampshire would be one of those states. Kaiser Family Foundation has done a state by state breakdown of the number of Americans who in 2016 could be denied financial assistance to help pay insurance premiums for the plans purchased in the federal exchanges. They estimate 88,072 enrollees in New Hampshire would be adversely affected.

That damage is immense. Not to mention the chaos that would result in the aftermath. I would predict a sizable surge in the ranks of the uninsured, a hefty spike in insurance premiums and a mad scramble in the states to try and minimize the harm.

While expectations of any kind of justice coming from U.S. Supreme Court decisions have largely diminished in recent years, a decision for the plaintiffs in King v Burwell would push things to a whole different level. Never before would a Supreme Court have taken away critically important benefits from millions. That would be a tragedy for the Court, its reputation and for the millions hurt.

King v Burwell can be looked at both from a legal and political perspective. From the legal side, there is a question of statutory interpretation. Lawyers are taught to read any phrase in a statute in the context of the whole text. None other than Justice Scalia has been a strong proponent of judges not engaging in “legislation” under the guise of interpretatation. To quote Scalia:

“No interpretive fault is more common than the failure to follow the whole text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.”

King v Burwell seems a prime example of the fault Scalia identified – reading an isolated section of a statute outside the context of the whole. The plaintiffs are cherry-picking.

Plus, it is unlikely that any state would have chosen the federal marketplace if they had a clue all financial help could be withdrawn. All through the creation of the Affordable Care Act and up until recently, states had no notice that such a result was even a possibility. Penalizing states that opted for the federal marketplace now would be grossly unfair. Are we to believe that Congress intended to hide consequences of opting for a federal marketplace in an isolated phrase?

As a political matter, the case is simply an ideological vehicle driven by wealthy conservative interest groups who have long been looking for a way to take down Obamacare. Since no plaintiff can show any actual harm, the case should be seen for what it is: a sham. The conservative forces who have been hell bent on killing Obamacare have offered and are offering no viable health insurance option for the millions who will be screwed if the Court rules for the plaintiffs. The mission here is purely destructive.

In the aftermath of both Citizens United , the Court’s decision on election campaign contributions,and Shelby County, Alabama v Holder , its ruling on the Voting Rights Act, another awful decision would cement the Court’s reputation as a tool of the extreme right rather than a fair arbiter of law. It is both scary and sad to watch the Supreme Court these days.

Book Review: “The Case Against The Supreme Court” by Erwin Chemerinsky – posted 2/8/2015 and published in the Concord Monitor on 2/22/2015

February 8, 2015 4 comments

A shortened version of this piece appeared in the book review section of the Sunday Concord Monitor on February 22, 2015.

This fine book, written by law professor and constitutional law litigator, Erwin Chemerinsky, presents a balanced but ultimately unsatisfying view of the U.S. Supreme Court. Chemerinsky persuasively argues that the Supreme Court has largely failed as an institution. The Court has acted to protect Big Business and the rich. It has largely failed to protect minorities, workers, and victims of government abuses of power. Maybe its greatest failure has been around addressing racism.

Chemerinsky’s assessment is not just based on the Roberts’ Court. He goes back and surveys the entire history of the Supreme Court. He highlights cases that spotlight a past that is buried in the ancient volumes of United States Reports. He also does make a number of interesting and positive reform proposals.

I like the fact that he takes the Court off its pedestal. He discusses any number of embarrassingly awful decisions released by the Court over its history. These have significantly marked its long history although you rarely hear about them. The Court’s public image has been largely protected and whitewashed. The majesty of its building, the gowned tradition, a servile conventional legal community and legitimate respect for the rule of law have all acted to overly protect the court from criticism. Also, I think the public has only the dimmest awareness of the Court and its history.

In reading the book, I was reminded of a speech I once heard from a very great judge, A.Leon Higginbottom Jr., who was a federal judge on the Third Circuit. Judge Higginbottom died over 15 years ago. As I recall the speech he gave in Concord NH at then Franklin Pierce Law Center now UNH Law, he said that the judges who wrote the Dred Scott decision and Plessy v Ferguson all went to Harvard or Yale. He was not downing those schools. I think he was commenting on the class background of judges, a topic rarely discussed in polite society.

While there is no automatic correlation between class background and voting record, I do not think it is an accident that the Supreme Court is so conservative. Judges as a group come from very elite backgrounds. There are certainly exceptions but generally judges go to fancy schools and they have impeccable professional credentials. Justice Roberts is certainly an example. Many judges tend to see the world from the perspective of the 1%. They are almost invariably pro-Big Business and anti-worker. Too many judges have a Mitt Romney-like view of the 47%.

How many judges on the Supreme Court have ever represented poor and working people? Justice Ginsberg may be the only one on the court now. Even Justice Sotomayor, who was not elite, was a commercial litigator and a prosecutor. I remember a discussion in the book “The Brethren” on this point. Justice Marshall had represented people accused of murder not to mention the many cases he handled where he fearlessly represented minority clients in situations where he was in great personal danger. You do not see that kind of life experience reflected now in people who make it to the Court.

Some of the infamous cases Chemerinsky mentions are well known like Dred Scott where the Court ruled that Congress could not grant citizenship to slaves or their descendants because that would be a taking of property from slaveowners without due process or just compensation. I wanted to mention several others that I did not know about.

Chemerinsky leads off with the case of Buck v Bell, a 1927 case in which the Court upheld the involuntary sterilization of a poor white woman. At age 17, Carrie Buck, a Virginia native, was raped by a nephew. At the time she was living with foster parents because her father had fled and her mother was too poor to care for her. Her foster parents blamed Carrie for the rape. Although Carrie went through the sixth grade and was by all accounts a normal child, her foster parents involuntarily committed her to a state institution. A few months after her child was born, the state of Virginia took her daughter away. Then the state sought to have Carrie surgically sterilized. Virginia had a eugenics law that authorized the involuntary sterilization of those deemed to be of low intelligence.

By an 8-1 vote, the Supreme Court upheld the involuntary sterilization. In an opinion from Justice Oliver Wendell Holmes, the Court wrote that eugenics laws were desirable because they keep the country free from being “swamped with incompetence”. To quote Holmes:

“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad anough to cover cutting the Fallopian tubes. Three generations of imbeciles is enough.”

As Chemerinsky notes, thousands more were surgically sterilized as a result of this utterly classist, repulsive opinion.

In the criminal arena, Chemerinsky tells the story of Thomas Lee Goldstein who spent 24 years in prison for murders he did not commit. Goldstein was an engineering student and a Marine Corps veteran with no criminal record. Chemerinsky writes:

“When Goldstein was tried, there were no eyewitnesses to the murders and there was no confession. There was no physical evidence like DNA linking him to the murder site. The primary evidence against him was the false testimony of a longtime jailhouse informant, Edward Floyd Fink.”

Fink had a long criminal record and he was a heroin addict. He testified he was briefly in a jail cell with Goldstein and he heard Goldstein admit to the murders. Fink had a long history of getting deals from prosecutors in exchange for testifying against other inmates.

The prosecutors withheld from the defense all evidence about Fink’s record of making deals to get his sentences reduced. Fink’s evidence was virtually the only evidence against Goldstein.

After 24 years in prison, the federal court granted Goldstein’s habeas corpus petition. However, when Goldstein attempted to sue the District Attorney in L.A. County claiming violation of his constitutional rights, the U.S. Supreme Court unanimously reversed lower courts and ordered Goldstein’s case dismissed. The Court ruled that prosecutors have absolute immunity from suits for money damages. In spite of all his years in prison, Goldstein was not able to sue the D.A.. He was, however, ultimately successful in settling out of court with the municipality.

The last example I will offer is the case of Hui v Castenada. This is one you probably will not read about in the law books. Francisco Castenada, a legal Salvadoran immigrant was detained in 2005 by U.S. immigration officials for possession of methamphetamines. While he was in custody, he started having health problems. He sought treatment for a lesion on his penis that was growing and frequently bleeding. Castenada repeatedly requested treatment as the lesion was becoming more painful. A lump also developed in Castenada’s groin.

A U.S. public health service physician’s assistant and 3 specialists advocated for Castenada saying he needed a biopsy to determine whether he had cancer. Corrections officials refused the procedure saying it was “elective”. Castenada was given Ibuprofen and an additional ration of boxer shorts.

For another year, his symptoms worsened. His lesion enlarged, emitted a foul odor and leaked pus. Castenada had difficulty urinating. When correction officials finally gave in and allowed a biopsy, doctors diagnosed squamous cell carcinoma of the penis. Castenada subsequently had his penis amputated leaving a two centimeter stump. But that was not the really bad part. His cancer had already metastized all over his body. He died a year after his diagnosis.

Before he died, Castenada brought suit against the Public Health Service, arguing that deliberate indifference to the medical needs of a prisoner was cruel and unusual punishment under the 8th amendment. Although lower courts had allowed this case to go forward, the Supreme Court ordered that the case be dismissed saying Public Health Service officers have absolute immunity too.

The heartlessness of this decision is mindboggling but it is quite consistent with the broader trend toward expansion of immunity for all government officials.

I cite these cases not just to point to the worst moments in Court history. The more recent ones reflect trends. Chemerinsky does a great job in fleshing out development of trends in the Court’s jurisprudence.

Earlier in this piece, I wrote that Chemerinsky ‘s analysis was ultimately unsatisfying. I wrote that because, even with the good reform ideas he proposes, we are still stuck with the same court. I have not even touched on some of their other awful decisions such as voting rights and Citizens United. I do honestly feel a degree of hopelessness about the Court because there are four justices who appear frozen in their right wing ideology. It is very rare for them to deviate from the extreme right agenda. I do not think there is anything that can be done about that. They remain until they leave the Court and are replaced by some future President.

I would concur with the reform ideas proposed by Chemerinsky. These include: changing the confirmation process and 18 year term limits for justices. The confirmation process has devolved into a farce of dishonesty. Chemerinsky mentions Justice Roberts testimony before the Senate Judiciary Committee.

“Judges are like umpires. Umpires don’t make the rules; they apply them. The role of the umpire and a judge is critical. They make sure everybody plays by the rules but it is a limited role. Nobody ever went to a ballgame to see an umpire.”

Please. Roberts was not the only one to mislead ( it was the same for Sotomayor and Kagan) but the transparent falsity of those remarks are so evident. It would be refreshing if we had a process where prospective justices could be honest and forthright about their true views. We have institutionalized a form of dishonesty.

I did want to say that Chemerinsky writes very well. Unlike so many books about the law, the book is readable and clear. Non-lawyers could read it and enjoy it. That is rare because so many lawyers are verbose, boring, and they use mystifying language when they could be simple and direct.

The book is learned and wise. I also think it is courageous. Chemerinsky appears before the Court and he really is calling them out. It is always refreshing to see a writer lay it on the line, speak the truth and take no prisoners. Chemerinsky deserves credit for taking on a sacred cow that has needed debunking. I think his book is in the best tradition of respect for the rule of law.

Categories: Uncategorized

Shady McCoy Baird

February 6, 2015 3 comments

Here are a few pictures of my dog, Shady.

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Categories: Uncategorized

More Guns Do Not Make Us Safer – posted 1/25/2015 and published in the Concord Monitor on 2/4/2015

January 25, 2015 3 comments

This piece appeared in the Concord Monitor on 2/4/2015 under the title “Culture of Fear”.

In the debate that recently allowed concealed carry in the New Hampshire House, there was one quote that grabbed my attention.

“The only way to stop a bad guy with a gun is a good guy with a gun.”

The Republican legislator who made that statement appeared to encapsulate the majority view. In this view, guns prevent violence and the more guns, the better. Safety would be all legislators, armed.

But I guess it is not just legislators. From all appearances, gun proponents think the world would be a safer place if everybody was armed, everywhere. This must be the dream of gun manufacturers. In this dream, if you do not have a gun, you are a sitting duck.

The crazy thing is we are not living in some 19th century Wild West. You would think civil society is a war zone like Syria. Why would legislators be expecting a shootout in the New Hampshire House in 2015? Are legislators that scared and insecure that they need a gun in their possession at all times?

Apparently they are.

We live in a culture of fear-mongering. There are many fears to catalogue. There is fear of terrorism, foreign and domestic. Then there are mass shootings at colleges, schools, movie theaters, religious sites, and malls. There are serial killers, drug lords, gangs, and just common criminals. The list is long.

We have a 24/7 media spin cycle that thrives on sensationalism. Shootings, especially mass shootings, grab large audiences so they are featured by many cable outlets. Politics are secondary. Whether it is Fox News or MSNBC, they all cover it for the ratings.

I would submit that fear-mongering has damaged our collective lives. All the sensationalist coverage has led us to expect Charlie Hebdo-type episodes. Even in sleepy, backroads New Hampshire, we are not immune. The local history of no such carnage does not seem to reassure.

I think this is sad because the New Hampshire reality is so much more about neighbors helping neighbors as we move through our daily lives. That has certainly been my experience living in Wilmot for the last 25 years. We actually depend on each other to get through.

All the fear from TV promotes paranoia, wariness of others, and a more Hobbesian view of the world. I am afraid there is something of a crossover where mass media infects real life expectations. Some people respond by stockpiling weapons, turning their homes into bunkers, and expecting the worst as an imminent event.

So now seems like a good time to address the view that more guns make us safer. That view is both false and dangerous. Whatever security all the guns have brought is outweighed by so many needless and senseless deaths they have caused. Gun proponents have a blind spot about the harm.

The United States is awash in guns. It now has by far the largest number of privately owned firearms in the developed world. I have seen the number estimated at between 200 to 300 million guns.

Every year there are more than 30,000 firearm deaths in the United States. That works out to over 85 a day. And that does not even get to the many hundreds of daily nonfatal injuries. While the United States is not more violent than other high income, industrialized nations, it has far more gun-related killings than any other developed country.

How can we not see this is a public health emergency? Just as we dealt with tuberculosis, tobacco, and auto safety, we need to see gun violence as equivalent to an epidemic. The lethality of guns so often has death as an end result.

David Hemenway, a professor of health policy at Harvard and the author of Private Guns Public Health has persuasively argued a harm reduction strategy. He says that scientific evidence shows a substantial number of murders, suicides, and unintentional firearm fatalities can be prevented with reasonable gun policies. Public health is not about banning guns – it is about creating policies that prevent violence and injuries.

Unfortunately, the gun lobby has been successful in framing the debate as only a matter of the right to own and bear arms. They have tried to narrow options: either citizens have the right to keep their guns or not. Other concerns are extraneous. That is a disservice because the public health approach asks how we reduce gun violence accepting that the millions of guns are already out there.

Just browsing the news over the last couple weeks, there was the Idaho story about the two year old who accidentally shot and killed his mother, a nuclear scientist, in Walmart. The mother kept a loaded handgun in her purse. When she was not paying attention, her two year old reached in and grabbed the gun with tragic results.

Then there was the nine year old in Arizona who accidentally shot and killed her instructor at a gun range. The child was firing an Uzi submachine gun while the instructor stood by her side. She was apparently unable to control the gun’s recoil.

I mention these stories simply because they are typical. Stories like this seem to get reported everyday. Reaction seems to be utterly muted.

Human beings make an infinite number of mistakes. It is not because they are good or bad. Legislators who fantasize self-defense gun use are kidding themselves. They have watched too many cop shows on TV. They are more likely to shoot themselves or each other than any criminal or terrorist. What might go wrong usually does go wrong.

Professor Hemenway says that one of his goals is to help create a society in which it is harder to make fatal blunders. He says that fairly small tweaks in design and engineering could save countless lives. I would also mention that suicides make up a huge percentage of gun fatalities. They are typically impulsive acts made easier by ready access to firearms. It is wrong-headed to assume all these deaths are inevitable.

To those who say more guns will make us safer, I say we have already tried that and the results are too apparent. We need to figure other ways to cut the death toll. It is not pro-gun or anti-gun to say that.

Categories: Uncategorized

Roe at 42: An Unapologetically Pro-Abortion Rights View – posted 1/18/2015

January 18, 2015 4 comments

January 22 marks the 42nd anniversary of the Roe v Wade decision. It has to be one of the most controversial opinions ever released by the U.S. Supreme Court. As someone who is unapologetically pro-choice, I wanted to offer a few comments on the occasion.

I think the Court basically got it right on Roe. Justice Harry Blackmun, the author of Roe, did what a good judge should do. He carefully weighed the competing interests. While many quibble about the grounds he used to decide the case, the Court ruled abortion was legal until viability which was defined as 24 weeks.

Most importantly, Roe established abortion as a decision protected by a right to personal privacy. The decision prevented states from subjecting women and their doctors to criminal sanctions in the first trimester. While restrictions on abortion could be imposed later, states could not ever jeopardize a woman’s life or health.

Justice Blackmun saw the case as necessary for the emancipation of women in America. He knew because he had lived through the era of coathanger and back alley abortions.

While there has always been opposition to abortion rights especially from fundamentalist Christians and the hierarchy of the Catholic Church, in the last four years, the anti-abortion movement has stepped it up. Their chip away strategy has been effective.

The strategy is multi-pronged. Try and ban abortion after 20 weeks; lengthen waiting periods; force clinics to close by admitting privileges law and burdensome regulations; attack Planned Parenthood and contraception;use religious exemptions to fight insurance coverage; and use ballot initiatives to try and add personhood amendments to state constitutions.

According to the Guttmacher Institute, in the last four years, states have enacted 231 abortion restrictions. Contrary to the spirit of Roe, in parts of the country, especially the South, it has become increasingly difficult to find an abortion provider. In this connection, the names Dr. Barnet Slepian and Dr. George Tiller come to mind. The murder campaign against abortion providers by extreme elements of the pro-life movement would, at the least, cause pause for doctors who might consider performing abortions.

I probably come at this issue from a different angle than many. Before I became a judge, I spent my professional life representing poor people in civil matters as a legal aid attorney. For 25 years, I represented, among others, unemployed workers, disability claimants, debtors facing bankruptcy, domestic violence victims and tenants facing eviction. These experiences educated me about the extent of poverty. I wish I could say we are doing better than we are. I think our efforts to lessen poverty have been dismally inadequate. We have been going backwards for a long time now.

In this context, I find all the concern about the unborn as phony sanctimony. We don’t even care about the born. It is hard to take seriously any concern for the unborn when, as a society, we treat those that make it into this world in such a trashy way. Take a good look around. There is no shortage of homelessness, hunger, lack of access to health care, child abuse and child neglect. The traumas visited upon millions of born children in America are daily and significant.

We have tons of people who are falling through our shredded safety net who are living on almost nothing, maybe food stamps. Unfortunately, they are invisible. Invariably, the same politicians who cry crocodile tears about the unborn are the first to cut needed social programs.

In my opinion, the person with the clearest view of these matters was not a lawyer or a judge. It was the late comedian, George Carlin. To quote Carlin:

“Boy, these conservatives are really something aren’t they? They’re all in favor of the unborn. They will do anything for the unborn. But once you’re born, you’re on your own. Pro-life conservatives are obsessed with the fetus from conception to nine months. After that, they don’t want to know about you. They don’t want to hear from you. No nothing. No neonatal care, no daycare, no Head Start, no school lunch, no food stamps, no welfare, no nothing. If your’re preborn, you’re fine; if you’re preschool, you’re f—ed”.

Only a black sense of humor can appreciate the irony of so much concern for xygotes and early fetuses. And yet, many anti-abortion advocates see an equivalence between fully grown adults and the potential life of a tiny clump of cells.

This is no exaggeration. Consider the Alabama law which forces pregnant teens seeking an abortion to first receive parental consent. If the teen cannot get parental consent, the teen is put on trial and the state appoints counsel to defend the unborn fetus. Alabama has no statewide public defender program. So there fetuses get counsel but adults who need constitutionally guaranteed legal representation do not.

I am hardly alone in submitting that only the women facing the abortion decision should make that choice. No one else, not the spouse or boyfriend, not the state, not the anti-abortion advocate, has to live with the decision. It is the woman’s life and it is the height of presumption for others to force their values on the prospective mother. They do not live her life.

I also did want to say: enough with the stupid attacks on Planned Parenthood. Anti-women health legislators in many states, including New Hampshire, have tried to eliminate funding for family planning. This jihad needs to stop. Planned Parenthood has provided absolutely critical health services which have reduced unintended pregnancy and teen pregnancy. So much of the work of Planned Parenthood is focused on things like cancer screening, breast exams, birth control and sex education, stuff that is unrelated to abortion. Yet that seems to be lost.

Sometimes it seems like the anti-abortion movement is motivated by an asexual 1950’s world view that wants to turn back the clock to a time before birth control and candid sex education. I find it shocking that such an anti-modern, religious-based perspective can gain so much ground in a pluralist and secular democracy.

To my pro-choice brothers and sisters out there and to the many who seem to take rights for granted, I say “wake up”. The anti-abortion movement is nothing if not persistent. Rights that are here today could be gone tomorrow.

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