^^^ the Convention in Philadelphia reached a decision about the purpose of our Union and the power it should have to do things; but it was a closely divided vote. That division continues even today, as wide apart as ever.

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As we celebrate America’s 237th birthday, we look at what has become of us. We do remain committed — almost all of us — to the democratic ideal, as asserted so timelessly in the Declaration of Independence. We remain committed to it even when, a Paul Krugman writes in today’s NY Times, in practice we seek legislation, or pursue behaviors, that negate it.

Still, as we all learn in school, the ideals in the Declaration are only one statement of our nation’s purpose. The other is the Constitution; and that document was not by any means the voice of all. In the conventions held in twelve states — Rhode Island refused to hold one — during 1787 to 1788, the question of whether to ratify or reject the Constitution divided folks bitterly. In key states, ratification was the minority opinion. “Federalists” had to work hard to win — often by just a few votes: in Massachusetts, the majority was nine out of 266 voting; in Virginia, where ratification was opposed by many, including Patrick “give me liberty or give me death” Henry, no less, the vote was 89 to 79; in New York ratification — opposed by Governor Clinton — was secured only three votes. (Rhode Island, stubbornly opposed, had to be forced to consent to the Union.)

Today we worship the Constitution — or at least we say we do — as if it had been an inevitable event. Yet Constitution Nation is, today, as divided about what it means as our founders were then. We are dividing further, in fact; and striking it is how the division gets expressed in the same terms put forth by anti-ratifiers in 1788 : “big” government versus states’ rights; federal power versus liberty; big city commerce versus rural life; national debt versus pay as you go; tyranny versus liberty; and so on.

Modern industrialization made America even more single a nation — and, to those of us seeking it,  more perfect — than the Constitution had envisioned; and the Civil Rights Acts of the 1960s enshrined our common purpose in law. But history did not stop there. Despite the efforts, struggles, and lives of so many generations of Americans to make the Constitution’s promise of “promoting the general welfare” real, our nation seems as divided as it was during the Ratification Conventions.

On the Coasts, and in key states in between, we have big-city commercial life; we enjoy the advantages of a Federal Debt that is the world’s safest and most desired investment. We have social diversity, cultural multiplicity, and full respect for the rights of women, people living alternate lifestyles, and social peace keeping. We welcome immigrants and acknowledge — sometimes proudly — that America is all about immigration. We control weapon ownership closely; we support social safety net legislation and worker unions. We do not allow religion to intrude upon public law but to remain a private matter, as the Constitution and First Amendment require; we live in confidence of the future, and and we have laws that safeguard and promote our commercial diversity.

In much of inland America, however, including most of the South, we are ruled by rural legislators, we dislike Federal debt, we rue social diversity. Culturally we are uniform, and the diversity in prospect frightens us. In these states the rights of women are regulated  by Biblical instructions, as are lifestyle alternatives. Public schools are disliked; the social safety net distrusted,  the taxes that pay for it an imposition. Voting rights are seen as a threat; so are immigrants. Guns rule; and the Constitution is seen not as the enabler of a more perfect union, but as a grudging exception to a general principle that Union is tyranny; that government and all that it seeks is the enemy of free men.

This division into two very different Americas would not be a problem except that Rural Nation controls the Federal House and through that control, prevents Big City Nation from fulfilling our objectives. As Big City nation continues, however, to hold almost all of the money power, most of the media power, and the vast majority of the education and information power, it seems highly unlikely that Rural America can have any lasting effect on Big City America except to alienate us still further from it. There are dangers definitely in aggravating this mutual alienation; just as in 1820 Thomas Jefferson heard, in  the ugly passions unleashed by the slavery question, “a warning bell ringing in the night,” so do we hear several warning bells ringing the intensifying division of America into Two nations.

Let us hope that the warning bells we hear are wrong.

—– Micvhael Freedberg / Here and Sphere

Let’s talk about “payroll cards.” If you’re low-income, you already know what they are. They are proof that you’re not in charge of your own life.

To be low-income in today’s America is to do without. It’s your fault if you can’t make ends meet, say the Tea party folks. 

You drove uninsured because you couldn’t afford car insurance and you need your car to get to work ? Too bad; pay the fine, pay to reinstate your driver’s license. Pay, pay, pay. That’s just about all that the low-income person hears in America today. Pay.

Such is the context in which “payroll cards” now enter your life.

What are payroll cards ? They’re a kind of prepaid debit card onto which some employers deposit their workers’ weekly wage. The gimmick is that almost all payroll cards have fees attached. You can’t take money off a payroll card without paying a withdrawal fee. Want to use your payroll card as a savings vehicle instead of withdrawing the money ? Some cards charge an “inactivity fee.”

That’s fine, if workers CHOOSE to use a payroll card. If they make that choice, they agree to the fees attached.

What isn’t fine is that some employers make it mandatory for their workers to receive wages on a payroll card; or, they offer direct deposit or check but either don’t tell their employees or make clear that they frown on an employee making that choice.  The payroll card is a favorite especially of firms that pay its workers minimum wage or just above minimum. For their workers, it’s payroll card or nothing — or a displeased boss.

It is unlawful for an employer to require workers to pay fees to access their wages. It matters economically, too: because to a $ 7.50 an hour worker taking home $ 265 a week, a $ 2.00 withdrawal fee cuts into vital cash. The only way to do it is to withdraw one’s entire pay check at one time and keep the cash at home, just like in the 18th Century before banks existed. Some payroll card employers are doing just that. And if that cash gets stolen — by a family member; it happens often — well, that’s just the way it is when you are low-income in today’s America.

The firms that insist on paying by payroll card, with all the fees that come with them, argue that many of their workers don’t have bank accounts and that the fees attached to payroll cards cost far less than those charged by check cashers. This is true; but the argument is a fake one, because the reason that employers use payroll cards has nothing to do with saving their workers some money. It’s about saving the EMPLOYER money.

It is much cheaper for a large firm to pay its thousands of low-wage employees by payroll card than by electronic deposit or by check.That, and not the convenience of workers, is why the payroll card is this season’s hot employer item. Payroll cards are yet another example of how many of  today’s large employers view their employees not as an asset but as a “cost item.”

Payroll cards do work for social security recipients, because Federal law prohibits card issuers and ATM companies from charging any fees to social security recipients paid by card. If this Federal law cannot be extended to cover cards used by private employers, then payroll cards simply should never be mandatory or pretended to be so. The Attorney General of New York is suing to force companies headquartered in his state to offer payment by direct deposit or check. Good for him.

No-fee payroll cards should be required everywhere in today’s America. It is hard enough to be low-income without having fees unavoidably attached to one’s (mostly) minimum wage paycheck.

—– The Editors / Here and Sphere

In Florida the trial is well under way now of Gerorge Zimmerman, who is charged with second degree murder for shooting dead a 17-year old named Trayvon Martin.

You may recall the case. Martin was visiting family in the town of Sanford. He had gone to he store at night to buy a soft drink and sone Skittles and was on his way back when unexpectedly he found himself being followed by a man who was armed — not clear if Martin knew this — and who at no time identified himself to Martin other than to ask “what are you doing here ?” And that only after Martin had asked, “why are you following me ?” Martin, thinking that this unidentified man meant him harm, defended himself. Zimmerman, thinking that Martin was up to no good, kept pressing. A fight ensued, ended only when Zimmerman, having gotten much the worse of the fight and being afraid for his life — his testimony — he took out his gun and shot Martin dead.

It transpired that Zimmerman was a volunteer for the gated community’s security watch patrol. It also was learned that Zimmerman had noted Martin walking across the gated grounds and called the Sanford police, telling them he intended to follow the Martin. The police advised him not to do so; but he did it anyway.

These are all the relevant facts in the case.

A huge outcry went up when the American public learned that the Sanford police decided not to arrest Zimmerman, who claimed that he shot Martin in self-defense; as a result of that outcry, the police did arrest him, and the state of Florida set in motion the prosecution that has now reached trial.

The outcry and its consequences — lots of public accusation and recrimination — has led to a focus on the fight that took place and not on the events that led up to it. This is a mistake and quickly distracts the mind from a proper consideration of criminal culpability on the part of Zimmerman. As it happens, Zimmerman is unmistakably culpable. Let us see why :

1. He is armed with a loaded gun. A loaded gun is something that the law terms a “dangerous instrumentality.” Our tort law imposes a strict liability upon those who use dangerous instrumentalities, be these explosives, lethal chemicals, waters in a private reservoir, or loaded weapons. And for very good public policy reasons. Our criminal law similarly imposes a like duty upon those who use dangerous instrumentalities; except that criminal liability for their use is not strict; it only arises if the dangerous instrumentality is misused recklessly or, obviously, intentionally). For example, if I drive my car at 60 mph in a 30 mph zone and doing so kill a pedestrian, I am guilty of reckless conduct resulting in a death and am criminally responsible.

2.  He disregards police advice and initiates a train of events that leads to a fight and a killing. Being armed, and following young Martin, in the mistaken belief that Martin is up to no good, persists in following without identifying himself. He allows — induces — Martin reasonably to conclude that he, Zimmerman, means him harm. What actually followed was almost forseeable, just as forseeable as that if I drive 60 in a 30 zone, in disregard of posted speed limit signs, an injury and even death will occur.

3.  His belief that Martin is up to no good is entirely mistaken. The likelihood of mistake — while being armed — is why he owed Martin a legal duty to identify himself. He has no idea who Martin is other than that Martin is walking across the gated community’s grounds.He has no evidence at all to the contrary. If he was going to follow Martin — despite being advised not to — while being armed, he owed Martin a duty to identify himself. Had he done so, none of what ensued would likely have happened.

Zimmerman’s defense is that he shot Martin in self-defense while being beaten pretty badly. However, the self-defense assertion  cannot stand. You cannot initiate a train of criminally reckless train of events and then, when events go against you, claim the rightful man’s defense.

There really is nothing further to this case. The death that took place was the direct result of a train of events set in motion entirely by Zimmerman. His conduct from the beginning was reckless — the mistaken assumption, the disregard of police advice, the failure to identify himself — and, as he was armed, his recklessness was criminal. The only difficulty is in deciding whether Zimmerman is guilty of second degree murder, as the State of Florida charges, or of manslaughter.

As manslaughter is a death caused by criminally reckless conduct, without regard to who is killed, the facts here readily meet that standard.

Second degree murder, however, requires an animus specifically against the person killed. As Zimmerman did not know Martin, the only way to reach the second degree murder standard is to prove that Martin had a generalized animus against people unidentified walking at night across the gated grounds. His original statements to police after the killing make clear that he plenty of such animus. But are these pre-arrest statements admissible evidence ? Probably not. The state is going to have to prove animus from the bare facts of the events of the case. As Zimmerman is unlikely to testify, it will be difficult, we think, to establish the extent of his animus.

Manslaughter it likely is.

—- Michael Freedberg / Here and Sphere