Are there holes in the Constitution? - Harvard Law Today
an aspirational document — with which we have to live, whether we fail it or not

The debate over the 1619 Project, which purports to condemn as evil the founding of America, rests upon the unique character of our nation. We are an aspirational adventure.

Unlike all other nations., we are not formed by language or tribal origin, not by unities of origin at all, but by the ideals we aim for. Every immigrant who came here voluntarily, and every descendant of those who did not arrive voluntarily but who willed to stay, cherishes the ideals that our founding documents — Declaration, Constitution, Bill of Rights — assert. Other nations generate; we are a work in progress; a long journey exploring the golden rules we expect, we believe in, we will not betray.

Into this celebratory optimism comes now an opposite view : that America was founded in slavery, in “colonization,” in hypocrisy of claiming great ideals while practicing brutal oppression. It is noted that almost all the Founders owned slaves and that few had any objections to dispossessing Indians. Much is made, for example, of the “three fifths” clause of the Constitution by which the apportionment of Congress members is determined : there it is, right in the document to which we all swear an oath to defend, that slaves are counted only three-fifths of a life. It is noted that every sort of impediment, first legal, later social, to assuring Black people the full equalities insisted upon by the Declaration: and indeed, Frederick Douglass, in his great “Fourth of July’ speech, noted that to the then slave, the Declaration was a mockery. We are all aware that barely 60 years ago, Blacks in many States were denied the most basic civil rights; and that even today, many people who hold positions of power, including some police, do not value or respect, equally, the lives and dignity of Black Americans: and we are told, by hose who extol the 1619 Project, that the persistence of these inequities is built in to our founding.

That is what we re asked to accept; but should we ? I differ. What I see is that the very perfection of our ideals is their curse. Political and social aspirations cannot be beyond the talents of we who are asked to live them. The equality of all reads well, because we conclude that it applies to us. It is OUR OWN potential inequality which we object to — not so much the possible inequality of others. By nature, self-preservation — not that of our fellows — is the basic instinct. we too easily read that instinct into Thomas Jefferson’s words which were intended to shield all, not just we ourselves. It is all good to say that the good of each of us is secured best by the good of all. That is what the preamble to the Constitution says — “the general welfare,” not the welfare only of me, only of you — and we easily utter these words only to feel, afterwards, that the general welfare is actually MY welfare first.

Nonetheless, the aspirations are there. They are written down, and we take an oath to defend and advance them, no doubt sincerely when sworn to.

Even as we fall short, in practice, of the ideals we say we honor, so too do we rise above the pessimism and generalizations written by the 1619 Project. America was NOT founded in slavery nor was African chattel slavery an American invention., It existed for at least 100 years before 1619 and, indeed, had existed throughout Saharan Africa for at least a milenium. The slave trade, rightly condemned, was just as much fueled by African tribes doing the capturing as by Portuguese and Spanish slavers buying the captives. At that time, moreover, slavery systems existed almost everywhere and had so existed since very ancient times. We think of African slaves, but the word “slave’ is derived from “Slav,” because it was Slavic peoples who were most often enslaved during the Byzantine and Venetian commercial heydays (6th to 16th Centuries).

Slavery nowhere was declared illegal until Massachusetts did so in its 1780 Constitution. Abolition of slavery arose, as a goal, during the rise of industry : slave labor was incompatible with industrial work. At the same time that slavery began to look infeasible economically, so did its moral injustice discomfort many; and Bishop William Wilberforce in England and Unitarian preachers in New England contemporaneously condemned it.

Abolition arose here, in America, and though a minority opinion, it built sufficient political and moral force to secure slavery’s end as a Civil war goal. That our founding documents echoed their equalities in our ears was not incidental. They were, in fact, vital to the political success that abolition finally won after decades of failure. Nor dare we overlook that the Founders, who mostly owned slaves in an era when slavery was common everywhere, were troubled by it and sought its end, albeit by voluntary means — several freed their slaves, and almost all wanted it phased out. Phase out is actually in the Constitution: the slave trade was to end in year 1808.

The much-maligned “three-fifths” compromise was in no way a backsliding. It was, in fact a major step forward. No slaves had ever before been counted as persons before the law., now they were accorded three-fifths enumeration, and their number was included in the most vital of political arrangements, the number of elected representatives given to a State. Those who decry the devaluation, compared to enumeration of white residents, argue backwards.

The question I now want to ask is, why has slavery had such vast political consequences in America when it had none in any European nation ? Including Spain and Portugal, the creators of Transatlantic slavery trade and for centuries its dominant practitioners ? First, for European nations,. almost all the slaves were imported into New World colonies, not the home country. Yet even there, emancipated slaves were accepted into society fairly readily. Tensions there were, and are; yet nothing like the hundred fifty years of opposition to equality in society that has occurred in the USA.

Second, the end of slavery was imposed here by a conquering army and its government. Acceptance by the conquered would have been difficult in any case, and with universal suffrage, everybody’s resentment found sanction in votes cast at elections. Yet I think we cannot dismiss what I said at the outset : our nation has founded itself upon the noblest of aspirations, from which we cannot help but fall short, even as the people of Israel — so we are told — constantly backslid from the Ten Commandments and honoring God. Set yourself goals almost beyond human capability, and you set yourself up for a fall.

Which is what we have done, for better or worse, by creating an America dedicated to the proposition that all men are created equal and have certain unalienable rights….

We did in fact found such a nation — not in slavery but in its opposite — and have to live with the consequences.

I think often of Solon, the great Athenian magistrate, who when asked by a foreign king whom he visited, did you give the Athenians the best laws, answered, “I gave them the best laws that they would accept.”

That is the way that prevailed all over Europe. it is realistic. It defers to human capability. It is NOT the way that we in America chose. We want the best laws, whether our people accept them or not. And many do not.

— Mike Freedberg / Here and Sphere


RCV Ballot Design - FairVote
ranked choice ballot : a bad idea masquerading as a reform. Do not allow it.

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On the November ballot as Question 2 will be a voter question : should Massachusetts adopt the “ranked choice” method of voting ?

We urge a NO vote.

Here’s why :

First : ranked choice will cut in half the power of your vote. As we vote today, with two major candidates on the ballot, we vote for one and not for the other. This is worth TWO votes. Because if you take one vote away from candidate A and give it to candidate B, you change the result by two, not one.

Under ranked choice, you give first choice to A but second choice to B. Your second choice vote for B gets added to her first choice votes. Which means that A, your preferred winner, gets only a slight bump instead of the equivalent of two votes. I doubt this is a result most of us want to see happen to our vote.

Second : ranked choice empowers organized activists far more than ordinary voters. Ordinary voters don’t organize campaigns. They only vote. But organized activists do organize campaigns, and in a ranked choice system, they can put five, seven, nine, or fifteen candidates from their group onto the ballot. They then give each of these a rank vote, where a non-activist candidate gets only ordinary votes, the activists blanking him. Count up the activist candidate votes, and the ultimate winner far outvotes the sole non-activist, who receives no activist ranking.

This situation actually just happened in the 4th Massachusetts Congress District, where a non-activist candidate won with 25 % of the vote, the activist candidates splitting the other 75 percent. Had ranked choice been operative, an activist candidate would easily have won. Why so ? Because activists know not to give any rank vote to the non-activist, where ordinary voters, offered a rank vote, would almost all use it.

Not surprisingly, the 4th’s activists, having lost, now want to change the rules. I think we know why.

Third : ranked vote reduces the power of your single vote by giving you a number of votes, each less powerful, than the one you already have, but in total, amounting to more than your one powerful vote. I doubt that any of us is entitled to more than one vote, no mater how weak the plural votes may be. With one vote, you use it or you don’t. With plural voting, some have an opportunity to vote more than others. Do we rally want to empower this sort of inequality ? I hope not.

Ranked choice voting is bad idea. It devalues your vote, empowers special interests, and creates inequality in voting. IT MUST BE REJECTED.

—- Mike Freedberg, for the editors at Here and Sphere


Boston City Councilor Michelle Wu announces candidacy for mayor
^^ the challenger and the challenged : who has the upper hand ?

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Yesterday, City Councillor Michelle Wu announced her candidacy for Mayor of Boston. Wu, a Roslindale resident, spoke thus :

““We’re in an unprecedented time as Boston faces a pandemic, an economic crisis, and a national reckoning on systemic racism,” Wu said. “To meet this moment, we need leadership that matches the scale and urgency of our challenges.”

The thrust of Wu’s candidacy will be familiar to many. She doubled down on it, too :

“The Boston we love is a city that takes care of each other, where hard work meets big dreams with grit and resilience. But for too many — during this pandemic and well before — it’s been impossible to dream when you’re fighting to hold on.Fighting to afford to stay. Fighting for our kids. Fighting a system that wasn’t built for us, doesn’t speak our languages, doesn’t hear our voices.I’m running for Mayor because Boston should be a city for everyone. Now’s the time for bold, urgent leadership.

It’s nothing unusual for a challenger to appeal first to those who are, presumably, an existing opposition to the incumbent and his record. That’s what Wu is doing here. She is betting that the black lives matter activists (“systemic racism”) are opposed to Walsh; assuming, too, that voters for whom English is a difficult second language (“system that doesn’t speak for us, doesn’t speak our languages…”) are opposed. She also sees a mood of “crisis,” voters who want “urgent” change — a variation on the “change can’t wait” theme that Ayanna Pressley wielded so successfully in 2018.. Lastly, she mentions “fighting to afford to stay” — a pitch to the many voters who are not happy at being priced out of the City by the development boom.

All of these are sensible voter interests for a challenger to reach out to. So will it work ? Depends on the accuracy of her reading the moods of Boston voters and also on her math: how many voters are there in the interests she is reaching for ?

As to the mood of Boston voters, is it still 2018 ? A year in which being an aging, white male incumbent was a ticket to defeat ? Had the Mayor election come in 2018, or even in 2019, I think Wu’s shot would have hit the target. Congressman, District Attorney, District 5, 8, and 9 Council, and 15th Suffolk State Representative all saw a change from male incumbents to challengers of color, four of them female.

In 2019, Wu, seeking Council re-election, won EIGHTY percent (!!) of the vote in the precinct cluster around her Roslindale home (she lives in Ward 18, Precinct 10, for those who follow these things.) I can’t recall if I have EVER seen a Councillor win that huge a share, not even when running city-wide, where voters have four votes to give. The most I can recall is about 66 percent. Even that is rare. Wu had a wave to ride, and she surfed it like a boss.

But next year is not 2018-2019. The mood of our voters has shifted. On September 1, credible challengers from Wu’s political direction sought State Representative seats in Charlestown, Allston, and Roslindale-Readville-Hyde Park. All three seats were won by candidates very likely to be Mayor Walsh allies. No win was bigger than the one that encompasses Wu’s home : the 14th Suffolk District that will now be represented by Rob Consalvo, whose 5484 to 3292 win over Gretchen van Ness, a very credible opponent and Wu ally, was larger than anybody anticipated. In 2018, long time incumbent Angelo Scaccia had eked out a win over van Ness, garnering barely 38 percent in a four-way contest. Consalvo running in 2020 won 53 percent in a three-candidate race.

Different contest, different candidates, to be sure. Yet I think Walsh has to like having Daniel Ryan, Kevin Honan, and Rob Consalvo representing three crucial parts of Boston than had their opponents won. Better still, he has to like that in this primary, the turnout of voters was immense, where in 18 it was much smaller. Activists — which is who Wu is appealing to — are far fewer than ordinary voters. If Walsh can turn out ordinary voters in anything like the numbers who voted on September 1, he is likely in good shape.

Lastly, he has to like the shape of the primary vote : for stability, not change. Voters have had enough “shaking up” in the past four years to last them a lifetime. What most of us want now is some quiet — political quiet. Governor Charlie Baker is as popular as he is because he epitomizes political quiet and stability. Baker moves the State forward, maneuvers it through bad weather without shipwreck, without breaking the furniture. Walsh can’t duplicate Baker’s helmsmanship because Boston is as stormy a sea as every big city. Boston quakes with big changes : development, immigration, identity clashes, economic displacement, hurry and more hurry. Wu is not wrong to see voters beset by the dizzy whirl of big Boston.

Yet my guess is that, if Boston whirls like one of those superheroes people like to adore, Walsh is up to the challenge. If Boston is Goliath, Walsh is David : he holds all the reins of power, he controls the budget — anybody who doubts that should recall the 8 to 5 vote by which the Council, Wu’s Council, rejected Wu’s budget proposal and backed Walsh’s — and he controls all of city administration., Chiefest of these in today’s climate of street protest is Police Commissioner Bill Gross, a Walsh appointee who is nobody’s puppet and who speaks for the vast majority of Boston voters in insisting on police primacy. Walsh has made it very clear that he will not tolerate, in Boston, what has been allow to happen in some other cities (and Walsh as Governor Baker to backstop him, and Baker has done so).

When I think about Walsh’s budget command, and about Bill Gross’s street command, and when I factor in September 1’s vote for legislators of stability,. I think Wu has a very weak hand to play — a hand which was strong two yars ago, and last year, but that has lost strength since then. I know that Wu cares deeply to be a fighter for justice. She is not a faker at all. But as caring as she is, she may find that she has missed the political bus.

—- Mike Freedberg / Here and Sphere


Rob Consalvo on Twitter: "Excited to announce my candidacy for State Rep.  for the 14th Suffolk District. I submitted over 200 signatures to ensure I  am on the ballot September 1st. There
^^ perhaps the biggest, most crucial moderate win : Rob Consalvo, former District 5 City Councillor, was elected by a landslide margin in the Hyde Park – Roslindale _ West Roxbury – Readville State Representative District.

On September 1st Massachusetts held its State Primary. Almost 1,600,000 voters participated,. and the results show a change of voting trend that few have remarked.

With the exception of Senator Ed Markey’s defeating Joe Kennedy’s challenge, it was very much a victory day for moderate Democrats and even for moderate Republicans. Let me now itemize.

Congress : in the First Massachusetts District, incumbent Richard Neal, chairman of the House ways and Means committee, turned back “progressive” Alex Morse by 59 percent to 41 percent. This result is the exact percentage opposite of “progressive”
Ayanna Pressley’s beating (less progressive ?) incumbent Mike Capuano in 2018 in the 7th District.

in the Eighth District, incumbent Stephen Lynch, the most conservative Democrat in our House delegation, easily disposed of “progressive” Robbie Goldstein by about 66 to 34.

in the Fourth District, moderate Jake Auchincloss won a nine-way primary over eight “progressive” rivals, winning over his nearest rival by 25 percent to 23 percent. (true to form, the District’s “progressives” now seek to change the voting rules)

State legislature — the House :

2nd Suffolk : moderate incumbent Daniel Ryan easily defeated “progressive” Damali Vidot Rosa by 4195 to 3093.

4th Norfolk : incumbent moderate James Murphy crushed “progressive” Melissa Smith — 6357 to 3099.

5th Middlesex : incumbent moderate David Linsky walloped “progressive” Jaymin Patel, 9243 to 2341.

6th Norfolk : incumbent moderate William Galvin defeated “progressive” Tamisha Civil by 5866 to 3238.

10th Middlesex : incumbent John Lawn, one of the most conservative Democrats, beat back a more progressive Allison Leary 4060 to 3624.

14th Suffolk : open seat. moderate Rob Consalvo easily defeated “progressive” Gretchen Van Ness. 5484 to 3292. (there was a third candidate on the ballot. He drew 1488 votes.) Consalvo was supported by Governor Baker.

Consalvo’s big win might be more significant than for only his District. More about this below.

12th Suffolk : open seat. moderate Brenda Fluker Oakley bested two rivals, 4074 to 3144 and 2237.

12th Norfolk : moderate incumbent John Rogers defeated “progressive” Michael Dooley 6451 to 3001.

16th Suffolk : open seat — moderate Jessica Giannino defeated “progressive” Joe Gravallese by 3770 to 2396.

17th Suffolk : long-time incumbent Kevin G. Honan, a moderate, defeated “progressive” Jordan Meehan 4260 to 3598. (Meehan had help from Ayanna Pressley’s husband, Honan was supported by Governor baker.

24th Middlesex : incumbent Dave Rogers turned back “progressive” Jennifer Fries by 7540 to 5858.

35th Middlesex :” incumbent moderate Paul Donato defeated “progressive” Nichole Mossalam by 5227 to 4161.

Moderates did suffer one loss : Vann Howard defeated incumbent David Nangle in his long-held Lowell seat., But Nangle was beset by m any well-publicized ethics issues. Howard’s win may, however, equally be attributed to demographic change : she is of Cambodian origin in the State’s most Cambodian city. (Lowell now has two State Representatives of Cambodian origin, the other being moderate Rady Mom.)

Republican primary : voters nominated for US Senator the candidate by far more reasonable, Kevin O’Connor, over the clownish Shiva Ayyadurai, by 59 to 41 percent. Turnout exceeded 250,000.

Thus we see that a very large turnout aides moderate candidates generally. Progressives have long numbered about 22 percent of Massachusetts Democrats, and though 2018-19 saw them advance to many unlikely wins (Rachel Rollins over Greg Henning for Suffolk District Attorney being perhaps the most unlikely), voter preference momentum seems reverting to moderates.

I think much of this primary’s moderate triumph has Governor Baker as its impetus. Baker’s success managing our response to COVID-19 — and his cautious attention to his job, free of all the performative drama that seems to afflict most politicians these days — has won him the respect of almost 90 percent of Democratic primary voters (according to recent polls). Certainly that respect affected how Democratic primary voters approached the decision who to vote for for Congress and the state legislature. I think that the overwhelming majority of participant voters has had enough of drama, of “shaking things up,” of being treated as if they are benighted bigots. Nor can I overlook the non-union, even anti-union lean of upper-income progressives. Unions are the bulwark of ordinary workers’ advancement in life., The well off may not appreciate unions or relate easily to union people, but the average Democratic voter sure embraces them. As does Governor Baker.

Union-endorsed candidates had a very good day on September 1st. Much better a day than they had in 2018 and 2019 elections here in this State. Unions had no bigger win than Rob Consalvo’s in the 14th Suffolk. Almost every union in Boston that endorses at all endorsed Consalvo. Thus his win affects more people than only the voters of his District. And not only union members. Consalvo has spent the past few years as chief of staff for Boston Public Schools — appointed by Mayor Walsh, for whom he has worked since shortly after losing the 2013 Mayoral [primary (in which he placed fifth but won big in District Five, whose Councillor he had been. Consalvo is likely to be Walsh’s chief voice in the House, and as he defeated an opponent who was a member of the Ward 18 Committee slate pushed by Councillor Wu — who is now running for Mayor — and which defeated Consalvo’s Ward Committee slate back in March, his big win has implications for Wu right on her own home ground. Consalvo will be Wu’s Representative, after all; and Wu’s chief of staff, Dave Vittorini, was Consalvo’s chief of staff back when Consalvo was a Councillor.

This plot has not only thickened, it has hardened.

Will the moderates (and union endorsed) continue to win in November and on into 2021 and 2022 ? We will soon find out. The choice is clear : stability or instability. I know which one I will support for at least the next two election cycles.

— Mike Freedberg / Here and Sphere


Greta HOW DARE YOU Meme Compilation - YouTube

How dare you ….. presume to know me ?

How dare you block streets and highways — which we all use — for your own selfish grievance ?

How dare you break the law and then try to justify it by pointing to some other breaking of the law ? What-about-ism ain’t a good look.

How dare you presume upon taxpayers’ money for your project that you cannot afford ?

How dare you, indeed.

How dare you presume which opinions merit being cancelled ? Who made you the judge of anyone else’s conscience ? Be careful that your opinion isn’t canceled next.

How dare you call for boycotting ? Do you not realize that a boycott hurts only the ordinary stiffs ?

How dare you invade somebody else’s personal space ? In restaurants. At their homes — sometimes at 6 am ? Do you not realize that violating people’s space is a good way to make them a sworn enemy of you and your smelly little orthodoxy ?

How dare you call yourself a queen ? A king ? America doesn’t have queens or kings. (gay slang excepted)

How dare you not be humble ?

How dare you not obey the Rule of Hillel the Elder : “whatever is hateful to thee, do not do to your fellow man. This is the whole Torah, the rest is explanation.”

How dare you oppose racism with racism ?

How dare you trample upon somebody else’s grass ? Green, or spiritual, all grass matters.

How dare you scream “f**k the police” and then call for police assistance when your own pride is invaded ?

How dare you judge anyone — anyone, and I do mean anyone — guilty on account of viral videos that always tell only part of the story ?

How dare you not honor the jury trial system ? It’;s in the Constitution !

How dare you swear to uphold and defend the Constitution, against ALL enemies, foreign and DOMESTIC, and then not do so ? Even support those who violate it ? how dare you do that ?

How dare you say “very fine people on both sides”when in fact there are few fine people on either side of a shitshow ?

How do you carry a rifle into a shitshow and not expect to get shat on? How dare you ?

How dare you not ask the question of yourself : how dare I ?

Answer every one of these questions humbly and without knowing that you are always fright — because chances are you are rarely right, and when you are right, you probably won’t realize it and might even think yourself wrong. Answer them before you set this column aside. You may even thank me.

— Mike Freedberg / Here and Sphere



On August 1st the Massachusetts House voted 142-17 to include a so-called ‘environmental justice’ amendment into the pending 2050 Roadmap bill setting our State’s future energy policy. The size of the vote suggests the bill won’t be successfully vetoed, even assuming that it should be vetoed.

What then is “environmental justice” ? Is there such a concept beyond the phrase ?

Proponents say that the term means that when energy policy is set, its environmental consequences should not disproportionately impact certain communities or neighborhoods. This sounds good. Equal protection of the laws, a principle we supposedly all accept, requires that energy laws, like any other laws, give equal, not unequal, protection to all.

The “environmental justice” amendment, however, is not a principle but an application of a principle. The devil as always, is in the details. The following lengthy quote from WBUr’s report on the House’ s discussion, tells us much :

Madaro’s amendment, in addition to defining an environmental justice community based on new race, income, and language-proficiency criteria, would give community members a much more meaningful role in the decision-making process about new projects. It also, importantly, says that any future environmental impact statement must take into account something called cumulative impact.

Right now, when a state agency like the Department of Public Utilities or the Energy Facilities Siting Board weighs whether to approve a pipeline, highway or other big project, it looks at whether the pollution from that specific project would exceed state law, but it doesn’t necessarily take into account any background pollution. (This has been a big point of contention in the ongoing fight over the Weymouth Natural Gas Compressor Station.)

“You have to look at the whole picture and the cumulative impact that EJ populations have been bearing the brunt of,” Belén Power says. “It makes a big difference to look at the entire picture and all of the burdens that communities like Chelsea, East Boston, Brockton and so many others are already carrying.”

If this provision becomes state law, it could have a really big impact on where big infrastructure and energy projects can be sited, she says.

That last sentence serves us a warning. Utility facilities have to be sited somewhere. They can;’t be floated up in the sky but must stand on planet Earth. Given passage of this amendment, where, then, will utility facilities be sited ? If not in or near an “:environmental justice” community, then where ? In a community that is not entitled by law to “environmental; justice” ? The language of the amendment suggest that it’s OK to place an electric power substation or gas pipeline transfer house in a neighborhood of higher income, or that is home to a smaller population of color than protected by the Madaro amendment. Yet communities of this sort have political clout. Will they approve such a utility station ? I am betting not. It’s in such communities that one finds the bulk of climate crisis activists.

Where, then, can a new or renovated electric port gas facility be sited ? Probably they can’t be sited anywhere.

There are plenty of environmental activists who would be quite happy to see electric and gas facilities disappear. Solar and wind, those are their thing. Let’s not forget that the so-called “Green New Deal” envisions just this, not to mention an end to airplanes (!)

I mention airplanes because, as State Representative Madaro specifies, the East Boston neighborhood which he represents lives with enormous environmental impacts from Logan Airport. Logan could never be built today, unlike in the 1920s. It abuts East Boston. planes almost skim East Boston rooftops as they come in for landing. Take-off noise often deafens residents. Jet fuel burns create substantial pollution. Car traffic to and from the airport stuffs east Boston streets. If any Massachusetts community houses environmental overload, East Boston is it.

There’s also an electric substation issue in East Boston. For three years now, Eversource has sought to build one on empty land abutting Chelsea Creek — empty but neighbor to a fish processing plant, baseball field and numerous homes. The proposed site fails on all kinds of levels, and I have written opposing it. I still do oppose it. My objections, however, have had to stand on their own criteria. These haven’t a law to fall back on, one that precludes the substation for reasons whose application creates a “catch-22.”

If the 2050 Roadmap Bill is enacted — which it likely will be — objections to the Eversource substation will be mooted, and my friends who oppose it can celebrate. But their celebration comes at the cost of creating a law that imposes next to impossible conditions on utility services, which we all need. Even East Boston needs them. Good luck getting them henceforth. And what of the airport, whjich expands all the time as Boston becomes ever more commerce-prosperous ? Oh well, that isn’t the legislature’s problem, I guess. If they make it hard for businesses to op;erate, or for customers to access them, well, that’s just collateral damage ?

Proposals like the Eversource substation should have to stand or fall ON THEIR OWN MERITS, not have their prospects barred by legislation that simply overrides the major issues involved because it’s easier to close doors than to have to make decisions on who they can open for.

—- Mike Freedberg / Hereand Sphere



^ First Amendment in action, yes. But what, exactly, do these protesters want ?

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More than two months have passed since the current wave of “black lives matter” protest began. The movement is said to be the largest ever in our history. Maybe so, although I recall that Martin Luther King’s Civil Rights movement was quite large and enormous. However, it is not my purpose to measure but to ask two questions : what, precisely, is the “black lives matter” movement trying to achieve ? What, if anything, CAN it achieve, if all goes well ?

It was easy to understand  Martin Luther King’s movement. He and his helpers, followers, and supporters wanted things promised in writing in the Constitution : full voting rights and laws to enforce of the “privileges and immunities” guaranteed to all citizens by the express language of the 14th Amendment. The 15th Amendment gave Congress full power to enforce these guarantees by legislation. The King movement asked Congress to pass that legislation.

You could read everything that King and his million followers asked for.  It was nothing that any of us has not asked for. The “black lives matter” protest hasn’t the same certainty. Its objectives are vague and not written down. I’ll have more to say about that later.

The King movement had its leader, and a very special leader he was. A minister of God; always dressed Sunday best; dedicated strictly to nonviolence; and, a speaker of rare power, who used the words of our founding documents just as Frederick Douglass before him had done. King — and not only King but also A Philip Randolph, Medgar Evers, Charles Evers, Hosea Williams, Ralph Abernathy, and the late John Lewis — controlled the moral high ground, the political ideal, and the confrontations : and when beaten, imprisoned, and even murdered, Americans could not help but say that it was wrong what was being done against them. Opponents had only one option : explicit Jim Crow.

King’s movement was also sectional. He confronted the South only. People were reminded of the Civil War, which all of us knew and understood — fought and won by the rest of the country now overwhelmingly more numerous and powerful than the eleven states of the old Confederacy.

Yet despite all the advantages that the King movement possessed and made full use of, and even accounting his and his cohorts’ dignity, Constitutionalism, eloquence, and numbers, it still took a President of the United States, willing to split his party, to get through Congress a Voting Rights bill and a Civil Rights Act, each with enforcement teeth, that already had major support in both House and Senate.

The “black lives matter” movement’s links to the Constitution that we all swear to are “equal protection of the laws” and “due process of law” — guaranteed by the 14th Amendment. Then what of it ? Objection is made that our nation’s police departments do not give citizens of color equal protection; they discriminate and give citizens of color pressures that they don’t put upon others. That’s the case being argued.

Viral videos certainly make the police in them look bad, ready to discard the protections that we all have a right to demand, or to blunder grossly, as happened to Breoma Taylor.  Yet even the worst of those viral videos — and the one involving George Floyd and officer Chauvin is terrible to watch — seem anecdotal rather than outcomes of a policy of Jim Crow. No one has established that any police department, or any city authority, has a policy of treating citizens of color more harshly, on purpose, than they treat others. I am readily convinced that some police have that sort of racial animus, and that city authorities knowingly tolerate it. Yet that is an assumption on my part, as it it is on the part of protesters.

(Note — I wrote “protesters.” By “protesters” I mean peaceable protesters exercising First Amendment guarantees. Vandals., looters, highway blockers, car jackers, arsonists, muggers, and combat rioters confuse a movement that cannot afford to be trapped. Let’s not let them trap us.)

We’ll talk now about the protest itself :

( 1 ) It badly needs eminent leadership. I speak not of wealthy athletes and Hollywood celebrities but of civic and religious leaders. Where is this movement’s Martin Luther King? Its Charles Evers ? Its John Lewis ?

( 2 ) It MUST act as the King movers acted: dress in Sunday best, practice nonviolence, and protest IN THE DAYTIME, not under darkness of night.

( 3 ) It must have a specific, legislative objective that everyone can buy into. “F the police’ chants won’t do, indeed they alienate. Disband the police is not going to happen, and even calls to defund the police aren’t going anywhere except in a few very left-political cities. Police reform is, however, on the table. Be specific and practical. Win police support for it. Many police chiefs urge it. Why not accommodate them ?.

( 4 ) The movement MUST address Black on Black city crime. A shock-jock podcaster, Gillie da Kid, citing the hundreds of shootings in Chicago as one example,, says “Black lives ain’t gonna matter until they start mattering to Black people !” He is right. In some cities, strong Dads and Role Model movements began arising long before George Floyd. The movement should embrace these action groups and bring their leaders forward.

I emphasize this because the main reason why police departments put so much police presence into majority Black city neighborhoods — what protesters call “over-policing” — is because people who live in those neighborhoods are scared, and angry, hearing gun shots all the time, and they call 911. A lot. Moreover, police sometimes overreact because they have every reason to fear whenever they make a stop or an arrest in neighborhoods whose worst side is what they see so much of.

( 5 ) The movement must clearly reject the criminals. It must shut them out, policing itself. It can do this. It has security people and can deploy them to fend off the outlaws. Nothing I know of will win the movement more support from ordinary people than its shoving the outlaws away for good.

( 6 ) The movement must win the support of Black police officers. It isn’t going anywhere if it views them as the enemy.

( 7 ) the movement cannot have a marxist agenda.

( 8 ) the phrase “black lives matter” implies that to an unspecified group or number, they don’t matter. Who is being thus accused ? Name them. 

( 9 ) the movement might well fail, given its lack of leadership and absence of a specific, achievable objective. It can also fail for not making common cause with the entire nation, as the King movement did. The movement cannot say “if you’re not Black, you don’t understand. The rest of us HAVE TO BE INVITED IN. It cannot be about being Black.

So far, the movement — much wrapped up in congratulating itself — enveloped by Black, Black, Black — seems not to imagine failure or to care much about the consequences.   

Lastly, “black lives matter” has to mean more than an admonition to police departments.  It should embrace self-improvement initiatives and — above all — social integration. As long as most people who are not Black interact rarely with people who are Black, each will readily see the other as “other” and be a bit uncomfortable about it. Uncomfortable doesn’t make for a healthy social com[pact ! If we can’t alleviate social segregation, legal reforms will always lack solid foundation in community custom.

—- Mike Freedberg / Here and Sphere




^ our Constitution : the nation’s teacher — and its safe harbor to which we all sail course

—- —- —-

Having today finished reading Stephen Budiansky’s admirable biography of Oliver Wendell Holmes, I am moved to discourse again upon my own views about our nation’s Constitution. I have written of this subject before. You can read my earlier essay here : In that column I spoke a lot about Mr. Justice Brennan and his view that the Constitution expands organically as the nation expands that it guides. I wrote there that the Constitution expands not the powers it grants but the subjects to which it applies. That was good, as far as it went. I see nothing that I wrote there that needs taking back. Today, however, I wish to speak of the Constitution from another perspective entirely. I want to speak of it as the nation’s teacher, its political headmaster, and — a corollary — a kind of destination toward which the nation and its people sail course.

Much of the Constitution is a kind of operating manual. That’s the part of it that I wrote about before. Yet most of the Constitution’s Amendments aren’t so much operational as statements of principle. And here, in the First, Third, Fourth, Fifth, Sixth, Eighth, 14th, 15th and 19th Amendments in particular, we meet the Constitution as teacher and as destination. The principles set forth are momentous. Nothing petty about them : freedom of speech, of religion, of the right to peaceably assemble; freedom from quartering of soldiers; freedom from unreasonable searches and seizures; guarantees of due process and rights to jury trial; freedom from cruel and unusual punishments; guarantees that every American citizen is a citizen of both his State and the nation; entitling him to all the privileges and immunities granted by any state; birthright citizenship; guarantee of equal protection of the laws, of State and nation; voting rights not to be denied on account of sex; and the application of all of these to all.

Everyone who reads the history of our nation since the years that these Amendments were adopted knows that the ink on parchment by which they were written down in no way assured that the principles therein would take universal effect easily or soon. None did. All required decades of conflict. Some required strife amidst violence by those who resisted. I needn’t elaborate the events we have read of, or participated in. My purpose here is to illustrate the situation created by the principles enunciated in a document we all profess to honor.

Holmes, in most of his Supreme Court rulings and dissents, always insisted on the principlar nature of our Constitution. Decisions in favor of actual litigants were to match Constitutional guarantees with facts on the ground. People at the bar of his Court — individually or as the citizenry of a State or city — were not to have their better life barred by logic but enabled by common sense : and to him, the great Constitutional principles — including those in the “operating manual” — expressed the common sense of political mankind. If not, how were they to be understood by common people ? And understood by all, they had to be, or the Constitution and the nation it guided risked a permanent class of the dissatisfied, the not understanding, or the not accepting.

As I have written to a dear friend, I see these great statements of sweeping principle as instruction given to us, the Constitution as the nation’s teacher. As I further wrote, I also see the great Amendments as a kind of harbor toward which our national boat sails, we being its helmsmen and crew. We were settled by immigrants brought here by ship (even the slaves came here thus albeit against their will), and ion important ways, that — the coming to an idealized, dreamt-of nation by ship — is our essential national experience. America did not exist when the first ships brought our first forbears here. It would  be no lie to say that America still doesn’t fully exist. In that sense, we are all — and I do mean ALL — immigrants coming by ship to a fully realized America, the America written in the Constitution’s great statements of principle.

Mel King, who galvanized so much of Boston when he ran for mayor in 1983, liked to say, “we came on different ships, but we’re all in the same boat now.” He meant simply that we have to work together, and so we do. Yet as I see it, we have more work than : striving toward being who we say we are. The Constitution has settled the question of which principles we are committed to. The wars that were fought to settle it have been fought, and the debates in Congress and in our elections have been debated. The nation is clear on which harbor we are headed to. The Constitution beckons us to plot a correct course and to build a ship that can get us there, that can withstand storms and tides, fair weather and foul. I think that if we see the Constitution in this light, we’ll be a lot clearer about which duties we have as citizen crew aboard what kind of political ship.

—- Mike Freedberg / Here and Sphere




^ Joe Kennedy III at Tino Capobianco’s big meet & greet, last November 2nd


Here and Sphere has yet to endorse a candidate in the contest to elect our State’s Federal Senator whose seat is on the ballot this year. That does not mean that I, personally, do not have an opinion. I do have one. I’m voting for Joe Kennedy. In the Democratic primary on September 1st.

Why am I voting for him ? I don’t usually vote a Democratic primary ballot, but this time I am doing so. That was the first step I took : to pass by the two men seeking the Republican nomination for this office. Until the Republican party extricates itself from the ugliness of Mr. Trump, and from the nihilistic, bathroom-graffiti level of gripes that he has imposed on the party as substitute for an actual agenda — until, as I say, the party asserts an actual agenda that I can support, I won’t be voting in its primary, no matter who may step into that mud.

A Democratic ballot, i will take.

On the ballot on September 1st I will find two names : Ed Markey, the current US Senator,  a man I have known since he first sought public office — in 1972 — and Joe Kennedy, presently a multi-term Congressman from our 4th District (centered in Brookline and Newton).

Markey was a long-time Congressman from the Middlesex County District before  deciding, in 2013,  to make a late-career move to the Senate (the seat was open because John Kerry had been appointed Secretary of state.) In that contest, I consulted to a Republican candidate, Dan Winslow. When Gabriel Gomez won the GOP nomination, I voted for him.  I did not see then why Markey — an eloquent voice to be sure, on rare occasions when he spoke up — was surrendering his seniority in the House to become a back bencher in the Senate. He has since become as rigid a “no” vote as the current Senate has. I am not a fan of “the universal No.” it gets us nowhere.

I met Kennedy for the first time last November at a big house party in Winthrop, home of my friend, Tino Capobianco. At least 100 people attended — some of them political, most not. No woke activists were there, only Kennedy followers. I was very impressed to see so many moderately ordinary voters there — the sort who get involved in politics for somebody they like but who don’t mainline political opium. Activists are few, and have a tendency to rigid mind. They want this, this, and this done, period — no matter by whom. (The current crop also voices a tendency to racial

thinking, a sad detour which I want no part of.) Ordinary voters — a personal candidate following — have only modest goals : they want somebody they can look up to, who will do a good job and who will remember their names and be seen out and around from time to time.

That’s the politics of neighborhood, what the late Tip O’Neill had in mind when he famously said “all politics is local.”

Kennedy has built a solid reputation as a civil rights advocate. He has also partnered with Governor Baker on Federal funds requests. I like that.

During this campaign, however, he has, unhappily, attempted to match Senator Markey’s very progressive agenda : medicare for all, green new deal, abolish the electoral college, you name it. I have watched him say that, again and again, and I have winced. I wondered if I could vote for him after all or whether I should maybe just take a pass on the entire contest: for I am very opposed to all three of those positions.

It turned out that I had missed the real event : Kennedy was very solidly becoming the candidate of labor and of those personal-following voters I mentioned above — the State’s Joe Biden voters, the Pete Buttigieg voters, and the Amy Klobuchar voters. Meanwhile Ed Markey became the candidate of our “progressives,” those who actually want the agenda he talks of.

Our state has pretty much divided, politically, into three camps : Trump Republicans, with their 25 percent; the pragmatic Democrats, who may well number 45 percent; and progressive Democrats, who seem to number about 35 percent. I am committed to the pragmatic Democrats. Anybody who thinks that that commitment isn’t crucial should take a look at the police reform bill presently being conferenced. If we are to deflect its hurry and its recklessness, it will be the pragmatic Democrats who will do it. The same split looms large in Boston. Next year’s Mayor contest, like last year’s City Council, Congress, and District Attorney contests, will be a battle between the progressives and the pragmatics.

It is vital, therefore, that Joe Kennedy win his race. I am under no illusions that he will espouse any sort of conservative, or even moderate, positions; but I am fairly convinced that he will hurry nothing, will listen to all, will embrace ordinary voters first, and will work across the political aisle to get good stuff done. it was, after all, his late uncle, Ted Kennedy, who made Voltaire’s quip his motto : “the perfect is the enemy of the good.”

Joe Kennedy will, thank god, NOT be perfect. He will, however, be good. That’s my political comfort zone.




The major debate afoot right now is not what you think it is. It’s not the election, not black lives matter, not even how much money we’ll get in the coming stimulus bill, although that is definitely in our minds.

Instead, the really big issue for everyone is whether school, opening for the coming year, should be in person or online. As I do not have kids in school, the question does not directly impact me. Nonetheless, we are Here and Sphere for a reason. Important public policy is our mission’s arena, and no decision seems more significant to us than how to educate our kids.

What we can do, if not to decide the big question, is to make sure that important factors do not get passed by. First of these, in our opinion, is that in-person school is mandated for a reason : kids cannot do without peer interaction. Do we value “diversity,” or don’t we ? Kids in school meet all of each other and have to deal with all of each other. It’s hard enough a sit is to know contemporaries who live in different neighborhoods without imposing more drastic social isolation. An entire school year spent at home, learning in the anodyne medium of on-line, trades socialization for safety. Yet is it safe, socially, to do his ? I wonder.

Some will say that the reality is that kids will separate into cliques anyway, including skin color cliques, so nothing is in the end gained by requiring kids to attend in-person school. These observers may well be correct; yet are we to simply give in to undesirable social outcomes rather than do what we can to dilute them ? I understand that after graduation, out in the real world, kids, now adults, will enter workplaces in which “diversity,” more or less, is in place. I’m not satisfied with that answer. It’s much harder to develop a workplace friendship than a school one. At work, adults practice dissimulation. They “front,’ as the slang has it. In school, these social strategies are far less workable, not to mention not yet come to mind.

For all these reasons, I strongly favor kids returning to in-person school.

There is more — considerations of a different kind: money. The Boston Public School budget includes $ 106,000,000 for “transportation.” It shouldn’t be there in any case, but at least it is required for in-person schools., If Boston decides to impose online, at-home schooling, what becomes of the now otiose $ 106,000,000 ? And what of the school facilities maintenance budget, several millions of dollars ? It’s hard to justify not returning all these dollars to the taxpayer, yet I’ll sell you six hundred Portland antifa lasers if you think tax money will EVER be returned to those who pay it.

Lastly, a parenting consideration : if Boston school kids are required to school from home, who will watch over them ? Supposedly we would like to get people back to work sooner rather than later. For high-tech folks who work from home as a matter of course, no problem; but for first responders, retail workers, health care aides, transport workers, construction guys, and many more,. work from home cannot happen. They HAVE to go to a workplace. How can they do this if their kids are stuck at home doing school by “zoom” ? You say “daycare,” but individualized daycare is far too expensive for the very workers who will need it the most.

Finally, an ethical consideration : safety is important, yes, but is it so important that we discard all of the above for its sole sake ? Maybe so. Maybe we do that. But there will be a price paid : not by us but by the kids themselves whom we are running through a safety gauntlet..

—- Mike Freedberg / Here and Sphere