BOSTON: FIRST LOOK AT COUNCIL DISTRICT ONE:

CityCouncil_redistrict_2011

Yet another of Boston’s nine Council Districts will be choosing a new member. In this case, its’ my own District, #One, which brings together the oldest of Boston’s neighborhoods : Charlestown, the North End, East Boston — 25 precincts all in.

The opening is gifted to us by the retirement of Sal LaMattina — not exactly a surprise, rumors had reached me, but still a major shift, LaMattina had voiced our District’s interests at the City Hall for years, and his voice was very distinctive: the last of his generation of rough-throated Italian upbringing in what was then the City’s biggest Italian Ward (East Boston). Whoever replaces Sal may well have an Italian last name, but there’s been enormous change since Sal became an adult; his successor will speak differently, in different words, in different worlds.

Several candidates have been mentioned : Lydia Edwards of East Boston, Jack Kelly of Charlestown, Stephen Passacantilli of the North End. Of these, Passacantilli has the longest political pedigree: I well recall his Dad Dan Passacanatilli when he was first hired to be a City Council staffer about 40 years ago. Edwards is the newcomer of the group, yet she is no rookie; in last year’s Special Senate Senate Election to succeed the #1stSuffolkMiddlesex’s Anthony Petrcucelli, Edwards won East Boston outright, with 941 votes in a seven-candidate field.. Meanwhile, Kelly, who hails from a long-time Charlestown family, ran for City Council at large in 2013 and received some 3709 votes out a total of 5557 in Ward 2.

Many Districts draw candidates who have no major political exposure. Its a token of #CouncilDistrict1’s intense commitment to local government that all these candidates could run the table in many of the Nine Districts.

But there will be time to assess the candidates and their campaigns. First, what of the District ?

Turnout. Despite the intensity of its activists’ activism, participation by the full electoral falls short. East Boston (Ward 1) beat the City average by ten points — but there was a very contentious casino referendum on the ballot. Charlestown’s 43.81 percent turnout is a true representation: six points better than the city average — not much. The North End’s four precincts tallied a mere 2956 votes, eight points UNDER the City average. This will be a Mayoral election years, so turnout will tend toward the high rather than the low. That said, more recent elections  have seen Ward 1 tally about 4600nbqllot, \Charlestown about 2700, the North End about 1600. Thus your “turnout over – under.

Demographics : When I drafted this District (as well as the others)_ for then councillor Terry McDermott’s 1981 (I think, this was a bit ago, y’know) committee pursuant to the Charter Change voted that year, District One wrote itself: it was to elect a traditional, Italian-American voice to represent what was still overwhelmingly populated by such — with Charlestown thrown in because geographically there was no option. There still IS no good option; but Charlestown and East Boston have almost completely changed. Today they are much more alike than in 1981. Charlestown’s vote is at least 30 percent gentrified, while East Boston’s has divided into four parts : young singles in Precents 1 and 3; gentrified in Eagle Hill and much of the Dom Savio Area; Hispanic and Brazilian along the “battle” streets and those that intersect from the tracks and Library Park to about the Eastward side of Trenton Street. As for the “Italian vote,” it can be found in almost every precinct but dominant only in Precincts 11, 12, and 13 — Orient Heights. And even there it has lost sense of command.

Issues : 35 years ago local Council contests weren’t driven by issues but by who one’s friends were. These were patronage elections, and which ward you came from determined your fate. Today that’s not nearly true. Council District 1 is divided by issues of housing, the housing market, education, business development, and availability of parks  and sports playgrounds in ways that unite across the district as the divide within it. The same is true of the District’s substantial union membership. Not much labor unity can be discerned between Teamsters in ward 2 and Local 26 Hotel Workers in the mid-section of Ward 1.Whoever runs successfully will have targeted with almost surgical care.

Interests : If Council District One isn’t the City’s number one restaurant district, it’s close. the North End alone accounts for at least 20 per cent of all the city’s restaurant licenses.

Income : 35 years ago, District One was almost uniformly working class, when working class meant something. Today much of it affluent, even very affluent. Charlie Baker easily won the North End, just missed carrying Charlestown, and kept his loss in Ward One respectable. He will almost certainly do even better in #CD1 next year.

NEXT : the candidates

—- Mike Freedberg / Here and Sphere

 

 

JUSTICE GORSUCH vs. JUSTICE HOLMES

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Neil Gorsuch is now a Supreme Court Justice. He joins a man he once clerked for, Justice Kennedy — first time a Justice’s clerk has sat on the High Court with a Justice he once clerked for.

Much has been made of Gorsuch’s alignment, jurisprudentially, with the late Justice Scalia. But what if Gorsuch actually feels more drawn to Kennedy’s methods ? Scalia is not there in the deliberation room, Kennedy is; and Kennedy, as we have seen, is moved by the actually litigants before him as much, if not more than, by the issues their disputes present. Would it not be fitting if Gorsuch found himself persuaded to follow Kennedy’s judicial course ?

We have no idea, really, if Gorsuch in his new role will continue the strict construction method he has applied as a Circuit Court judge to statutes and administrative regulations. As a Circuit Court judge, he is subject to being overruled and thus to avoiding novelties. He often writes, in his Circuit opinions, about the need to stick to High Court precedent. As a Justice, he won’t need to be thus bound. He will be able to set precedent.

How flexible will his High Court opinions be ? Probably not as flexible as they might be, were Justice Oliver Wendell Holmes in the deliberation room. We badly miss Holmes’s awareness of the entire history of the common law upon which our Constitution’s precepts rest. I only wish that Justice Gorsuch could hear Holmes speak the words of his masterly dissent in the famous case Lochner v. New York (1905):

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer‘s Social Statics. The other day, we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U. S. 11. United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Northern Securities Co. v. United States, 193 U. S. 197. Two years ago, we upheld the prohibition of sales of stock on margins or for future delivery in the constitution of California. Otis v. Parker, 187 U. S. 606. The decision sustaining an eight hour law for miners is still recent. Holden v. Hardy, 169 U. S. 366. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

How would Gorsuch, with his strict construction opinion of the law, respond to Holmes’s argument ? Holmes’s conclusion, remember, is to uphold the law at issue, not overrule it. That is judicial restraint, albeit, in Holmes’ sarcastic sentences, strictness which doubtless he enjoyed applying against the activism of the majority decision.

Gorsuch wrote a concurrence in the Hobby Lobby Stores, Inc. v. Sebelius in which he also upheld a statute, the so called Religious Freedom Restoration Act (RFRA), the law upon which the owners of Hobby Lobby relied to justify their refusal to permit employees enrolled in the corporation’s health plan to access certain contraception devices to which they objected on religious grounds “sincerely held.” Gorsuch’s opinion has become one of the bulwarks of those who opposed his confirmation; yet his result is the same as Holmes’s: to confirm the statute at issue.

Gorsuch as a Circuit Court judge did not paint the context of his Hobby Lobby, Inc. opinion with a brush broad like Holmes’s. It was enough for him that the owners of Hobby Lobby had proved the sincerity of their religious belief and thus the applicability of the RFRA to their case. But might Gorsuch, now, as a Justice, speak more generally of the RFRA, and say, analogous to Holmes’s words, that the act must be upheld because it does not “infringe fundamental principles as they have been understood by the traditions of our people and our law” ?

I sincerely hope that Gorsuch always keeps these words of Holmes in his mind when writing an opinion. That said, the RFRA is not as easy to dispose of, or to uphold, as the labor law that Holmes decided to uphold. The RFRA is written upon a First Amendment as ambiguous as any part of our Constitution. It bars Congress (and the States too, via the 14th Amendment) from enacting any establishment of religion, but it also prohibits interference with the “free exercise” of religion. These sound good, but the devil is indeed in the details. Is it “free exercise of religion” for a person to exercise his religion against the interest of an employee enrolled in his health plan ? The RFRA says that it is. The First Amendment does NOT bar individuals from doing what the owners of Hobby Lobby, Inc. did; but why does it NOT bar Congress from enacting a law that sanctions it ?

The question has become as religiously political as the majority;’s opinion in Lochner had become economically political. There lies the trap for Gorsuch, from which the words of Holmes offer him safe escape.

To the question I asked in the paragraph two prior, Holmes’s words provide an answer inapposite. It is one thing to uphold a statute that alters the law of contract, the parameters of which is not a subject of Constitutional precept. It is quite another to opine upon a statute that squeezes within the ambiguities of the First Amendment. Ambiguity provides Justices with a world of discretion. Gorsuch will need to be extremely careful, in cases arising under ambiguous Constitutional guidelines, not to arouse a whole lot of of sleeping dogs — many of them, in the case of religion issues, deplorably politicized these days — that the Constitution lets lie.

NOTE : those who want to study the jurisprudence of Holmes more fully can read HERE : https://www.theobjectivestandard.com/issues/2009-summer/justice-holmes-empty-constitution/

— Mike Freedberg / Here and Sphere

THE MUGGLEBEE FILES : CROSSING THE LINE

Shayrat airfield

 

 

 

 

 

 

 

 

 

 

The stunning revelation that chemical weapons were used, yet again, in Syria has turned our nation’s  foreign policy upside down. Videos of children suffering from this attack are difficult to watch and viscerally real to the core : which begs the question, why anyone in any sort of situation would ever use such weapons and for what, if any, gain?

It is a line no one can cross and come back. We had no choice but to respond, and we did.

Few events that can trigger as potent a world reaction as the sight of children suffering. As Trump says, “It crosses a line”.

Yet as we accept the situation, increasingly and urgently important it is to maintain some focus as to who was behind this and why.  And then to target those who perpetrated it, in a way precisely that sends a message — not to them, for they are finished — but to the rest of the world that this must never, ever be done again. Period.

War is of a nasty complexity, politics perhaps even nastier. Nevertheless, behind every atrocity lurks an agenda, however misguided. Yes, Syria’s leader Assad is labeled as doing this terrible thing. That much, our nation’s leadership has said. Yet the only reason that Assad still exists is the support he gets from Putin’s Russian forces. That would be troubling enough, but this war isn’t so simple : we would like to see Assad removed : but his army has battled ISIS, and to remove him would remove a significant force fighting our primary foe in the entire Middle East.

Given Russia’s involvement in our recent election, the Russia factor in Syria got worse.

Assad in 2013 had already used chemical weapons against his own people, acts that President Obama had to respond to : he declared it a crossing of the line. Military action was ready; however, Obama chose, at the last minute, a diplomatic maneuver by which Russia agreed to remove all chemical weapons from Syria, neutralizing their use – and preserving Assad’s regime.

Obama seemed satisfied; but the gambit proved effective. Obama could have done both — persuade Russia to take out the weapons AND then, himself, take out Assad. He chose not;, and things are where they are now.

So, why did Assad do this ?

I’ll discuss this issue later. First, let’s talk a parallel problem we currently face : North Korea. Their testing of ICBM’s has been much noticed; equally noticed was the curious murder of Kim Jong’s estranged and exiled brother in a Malaysia airport – by, of all things, a chemical weapon. Which one ? Sarin. A deadly gas which only few nations possess, the US being one, Russia another. The question became : who did this and for what purpose? Some said it was Kim Jong himself. Yet, much mystery surrounds that ongoing investigation.

You may also recall an incident from last year in which a Russian fighter jet near the Syrian border crossed into Turkish airspace and was shot down by Turkey. Instead of challenging Turkey, Putin did something very different : he blamed the USA even though there was no evidence of our involvement at all. He then put together a NATO meeting with Turkey and others to develop strategy against their common enemy, ISIS, and he deliberately disinvited the US. What does any of this mean? It means Putin was willing to get his own fighter killed in order to draw Turkey into his sphere and driving a wedge into the US/Turkey relationship.

Putin has been credited for the chess mastery of this move, and the US criticized for having been played with little ability to counter.

What can the US do against any of this? Putin seems every day bolder to push US leadership in demonstrating his autonomy and international power. His corruption of our recent election is only one play in his game. So, what is the US thinking? The Syria fighting has seemed to move Assad’s way, as Russian military assistance enabled the Syrian Army to re-take Aleppo — and to corner rebel factions that we were supporting. Russia supported Assad, while we supported the rebels, put us face to face with Russia’s aims. Russian influence within the new US administration complicated matters, not to mention making the resolution an urgent matter of national security.

Assad appeared to have re-asserted his regime, announced his success, and celebrated it. Yet yesterday he felt the need to employ a chemical attack on the Syrian people. With Sarin, no less.

The same poison used to murder Kim Jong’s brother. And the same Assad that had used before and was supposed to have been removed by Russia.

The world buys that Assad did this, because he’s done it before. There had to be a response by the US. But what response ? Could Russia be inducing the US to act ? If so, to what purpose ? Has Putin played a part in the North Korean problem by having a hand in Kim Jong’s brother’s murder? The idea that Russia might poison people isn’t unheard of- in fact it’s heard of. Often.

Perhaps Putin is pushing Trump to lift sanctions, but given Russia’s successful money laundering network, in which Trump has been implicated for at least a decade, it’s doubtful Russia cares about the sanctions. Yet, their economy isn’t good, which means the people of Russia aren’t good, and Putin may feel this a major weakness. Our foreign policy may seek to turn his own people against him ; easier said than done.

All that being said, perhaps Russia did not do this sarin attack. We have no clear idea why Assad would do it, but we need to accept he may have. And there is one other possibility.

Who else could engineer something that immediately draws American attention and determination to avenge ? The world is now unified against Assad. Putin takes a big risk by continuing to support him; indeed, as a leader with world power goals, he needs to distance himself from Assad’s heinous regime lest he be implicated in the murderer of children (he already is that, having supported those who shot down a commercial plane over Ukraine that was carrying 260 people, including children.)

This is what makes this situation so grave. The lines between good and evil, who’s flying close to the line and who’s crossing over it. Is there even a line at all ? The Trump administration has already made it clear that truth is negotiable, that there are facts and there are alternative facts. Our world is upside down. Who is in charge? The guy who still talks about how many electoral votes he got, and tweets at 4 in the morning? Where are the adults? What lines are being crossed? Better yet, what is the line that can not be crossed?

The American people draw the line at innocent children.

It’s been said that Putin is playing three-dimensional chess and the US is playing checkers; this may be true. But it may not be. The history of the United States includes actions to further our own agenda that have ,at best, blurred lines and at worst crossed them deliberately. This must be considered.

A line has been crossed. But to be clear, it wasn’t in Syria yesterday by Assad. It was crossed last November. And ever since, we’ve been trying to re-draw it somehow, and it’s not entirely clear how that’s gonna happen.

—- Christopher Mugglebee / The Mugglebee Files at Here and Sphere

NEWS & OPINION : AIR STRIKE IN SYRIA; GOVERNOR BAKER AND THE STATE BUDGET; GORSUCH CONFIRMED

hr-mcmaster

^ General H. R. McMaster, President Trump’s National Security Council chairman, a man with a combat record unmatched recently, devised the two plan options, of which the President chose one, to make last night’s strike

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Air Strike in Syria

Last night the President took action against Syria’s tyrant Bashar Assad. (Reports say that 59) Tomahawk missiles struck the Sharyat air field whence Assad launched his deadly sarin gas bombing raid against villages in Syria’s Idlib province.

I fully approve this strike and hope there will be more once the details of a plan are agreed to and after the President secures an authorization from Congress to prosecute the defeat of Assad and his regime.

As for the first strike, I disagree that it was unlawful of the President to take. Long deliberation would render the strike’s deadly effectiveness moot. Assad had to know, and know immediately, that we  will not stand by while he violates all the war agreements made by the entire world 100 years ago, one of which is outlawing the use of weaponized poisons.

We are told that Russia will interfere with future attacks. Such threats are easy to make. If Russia’s murderous dictator wants to try the resolve of the free world, let him. He has had some success, recently, breaking the unity of purpose of the West; if he moves to resist our air strikes with war of his own, he will lose everything his devious cyber wars have gained, will assure rather that the NATO alliance becomes more resolute against him than ever. Does Putin really want to lose all his gains for the sake of a torturing, murderous petty tyrant far from Russia’s borders ?

The bigger difficulty of any Syria attacks arises from Iran. Assad is Iran’s client, toward whose continuation in power Iran and its proxy armies have committed tens of thousands of fighters and much weaponry. Iran cannot accede to having its ally ruined. Yet is Assad himself Iran’s bet ? One wonders if Iran would not be just as well off, strategically, being the top ally of a post-Assad Syrian government. Iran’s involvement can keep the peace after Assad is gone, and what better guarantee does it have of future influence in Syria than being peace after Assad’s most important guarantor ?

The other factors for war planners to consider are (1) how to keep Israel safe if Assad decides to attack it and (2) what position will Syria’s Kurds win for their effective victories and unmatched fighting skills ? Also what to do about Syrian refugees.

Israel first : as I see it, Assad attacking means nothing more than did Saddam Hussein’s attacks in 1991. Israel possesses our most effective missile-fighting defense. It deployed the predecesssor of that weapon very effectively in 1991. It acn do so again. As for the Kurds, a no fly/ no drive zone is all that is needed to cover the Kurdish region’s security. The same measure secured as much for Iraq’s Kurds after 1991. Lastly, the refugees. Whatever President Trump had in mind against refugees before, it can no longer stand. Our commitment to act in Syria obliges us to take on the consequences of our action. The war is ours now, so must its civilian victims be ours as well.

Governor Baker and the State’s Budget

For at least a year I have been talking about the state’s revenue riddle. My prediction was that Massachusetts would not be able to fund itself, much less, initiate, beyond the current fiscal year if we did not secure new revenue. The time has now arrived. The Fiscal Year 2018 Budget had a shortfall of money, which could only be resolved by every accounting device that Governor Baker could wield. There will be no such magic next year. The state’s FY 2019 Budget will require substantial more revenue.

Consider all the needs the Budget must satisfy :

(1) the MBTA still requires almost everything by way of infrastructure upgrades, new cars and locomotives, support system efficiency, upgraded passenger amenities (especially wi-fi in buses and commuter rail). The pension and retirement system must be better managed and fully funded. The Green Line Extension will begin construction. New commuter rail services must be initiated, including small-van routes and van-sized connectors. None of these can be accomplished without money infusions. The T has made substantial savings under Governor Baker’s management, but that device seems used up now. Recent money saving proposals have cut into actual service and thus were rejected.

(2) the state’s health care cost bases are undergoing complete restructuring. Baker told me last Fall that it might take five years to complete and would cost many billions of dollars that the state doesn’t have.

(3) the opioid addiction epidemic continues, is actually worsening, even as the number of beds for addicts requiring treatment grows more slowly than that of new patients.

(4) mental health treatment continues to suffer from the failures of 1980s de-institutionalization. One positive development, however, is the total repurposing of the Bridgdewater institution housing criminally insane persons.

(5) because the teachers’ unions and their parent allies decisively won last year’/s fight about charter school expansion, publicly funded schools now dominate education budgeting. School district budgets groan under the enormous and increasing burdens of teacher and staff salaries and benefits — in Boston, these account for 85 to 87 percent of the entire $ 1.06 billion school allocation. For fiscal 2019 and forward, public school budgets will likely increase by at least three to five percent annually even if we undertake no school reforms, or longer school days, or pre-school schooling — all oif which we will probably establish despite. Where will the money come from ? How will we assure continued improvement in school spresenyly under-performing ?

(6) charter schools, which help to close the “achievement gap” and thus prepare children less favored by family income or parental motivation for actual employment, have been blocked from moving to serve at least 32,000 city kids every year, and probably many more than that “official list” number. how will we now educate those 32,000 kids well enough that they can perform at least entry level jobs ?

(7) where will the state funds be for additional transit lines, train routes, bike and hired ride lanes, parking, garaging ?

The 2018 ballot will offer voters a two-tier tax proposal that proponents hope to use to fund transportation and education expansions. The history of such earmarked revenue doesn’t support that expectation. the money belongs to the legislature, and it appropriates as it sees fit. that’s what happened to the cigarette tax revenue that as supposed to be set aside for transportation. It didn’t go as planned.

In that case, what WILL the plan be ? I suspect there’ll be a move to tax online commerce, using point of sale as the nexus of a sales tax and the Constitution’s commerce clause as the basis for a challenge to it. This is one fight I think worth fighting. There is no reason why online sales of goods should enjoy a price advantage over bricks and mortar goods sales. the only effect that advantage has is to penalize bricks and mortar businesses. I hope that Governor Baker will agree with the proposal. The success of his upcoming state budgets could depend on it.

Judge Gorsuch

You can now call him “Justice Gorsuch.” He was confirmed by a vote of 54 to 45. Three Democrats joined 51 Republicans (Georgia’s Johnny Isakson did not vote).

I have supported the nomination since the day after it was announced, for reasons given in several columns and fully explained therein. I shall examine Justice Gorsuch’s long and challenging major opinions in a future column.

—- Mike Freedberg / Here and Sphere

 

NEWS & OPINION : THE GORSUCH DEBATE; FRAMINGHAM; SANCTUARY CITIES

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^ Framingham Charter Commission members celebrate vote to make it a City. From Left : Janet Leo9mbruno, MK Feeney, Jason Smith, John Stefanini

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Judge Gorsuch

Readers of this column know my feelings about the nomination of Judge Gorsuch to the Supreme Court. As the confirmation vote draws close — Senator McConnell says he’ll hold it on Friday — the devolution of what used to be an occasion for restraint continues . You already know my view, but it’s worth restating :

(1) Judge Gorsuch argues brilliantly for his view of the law, one in which the law is held to mean what it says and says what it means, a test which he applies rigorously.

(2) My view of Constitutional interpretation is different. I think that laws must be allowed a measure of flexibility because real life doesn’t precisely reflect rules written in words. An excellent example is yesterday’s 7th Circuit decision that the 1964 Civil Rights Act’s disallowing workplace discrimination on the basis of sex necessarily incorporates sexual orientation.

(3) Judge Gorsuch would surely decide opposite. He would have good grounds for doing so : the sex of an individual, as contemplated in the 1964 law, refers to biology only. Importing into that law the concept of orientation, which clearly the 1964 law did not have in mind, rests entirely on the theory that the application of a law can expand, or change, over time as life and understanding of it evolves.

(4) sanctioning the evolving of a law seems just to most of us; yet Gorsuch would argue that any expansion was not agreed to by those who made the 1964 law, and that the agreement factor is crucial and cannot be tampered. He’d argue that disagreement about what expansions to allow undermines consensus about the law, and that consensus is vital: without it, the law weakens.

(5) Gorsuch’s point is a strong one. So what to do ? I’m not about to answer that right now. What I do want is that Gorsuch’s voice join the deliberations among the nine Justices when a case is up for decision. I want his voice there because his view cannot be lightly dismissed by a Court charged with making rulings that must stand the test of time just6 as the laws must.

The arguments being made by Gorusch’s 41 opponents fail. They. amount to saying : we don’t like how he will probably rule. Which amounts to saying that to win t.heir vote, a nominee must agree to rule as they would like. No Senator, and no person, has any right to deposit a Justice’s thinking in their bank. Other Senators say their opposition is payback for the Republican Senators disgraceful refusing to accord Merrick Garland a hearing and vote. That was indeed an act of bad faith subverting Constitutional duty; but the “payback” Democrats have aggravated that irresponsibility rather than resolve it. Then there are Democrats who advance the proposition that no nominee presented by a President under investigation for potential treason should be considered. This view is comic eyewash. Those who make it know full well that even an impeached President’s fully Constitutional acts — and a Justice nomination is one — are not voided by his or her impeachment.

I’ve had it with the selfishness of partisan politics. Either we are governed by the Constitution, or we aren’t. Either we welcome to the High Court jurists of opposing views or we abet Animal Farm.

Granted, that most of the condemn-worthy actions being taken by the Senate’s Gorsuch opponents result from pressure put on them by outraged activist constituents. The indulgent extremism overtaking political participation, on both sides, hurts everybody, yet there seems to be no stopping it. We are rolling headlong toward anarchy or civil war, and right now I see no one in a leadership position who is ready to oppose it, or even to call it out; just the opposite. Most politicians caught up in the extremist flood are happy to stoke it, and the rest are afraid to stand in its way. We will someday rue their cowardice and cynicism.

Framingham

Last night 11,263 voters in the state’s largest town voted to make it a City with a May.or and an elected 11 person Council. The vote was close, as I expected : structural change is hard to make good. Heck, the Massachusetts Ratification convention of 1787 approved the  Constitution by only three (3) votes. Here are the pecinct totals:

(1) Yes 566  No 562 ;   (2) Yes 566  No 559;   (3) Yes 305  No 440;   (4) Yes 572  No 546;   (5) Yes 492  No 498;   (6) Yes 482  No 461;   (7) Yes 417  No 370;   (8) Yes 374  No 394;  (9) Yes 207  No 233;   (10) Yes 126  No 116;   (11) Yes 566  No 455;   (12) Yes 187  No 220;   (13) Yes 248 No 243;  (14) Yes 132  No 114;   (15) Yes 204  No 154;   (16) Yes 61  No 80;   (17) Yes 27  No 45;   (18) Yes 177 No 118.

Yes won 11 precincts, No won 7. The Brazilian “South Side” voted particularly strongly in favor : Yes 381, No 272. Because the very large “North Side” precincts’ vote was split almost evenly — Yes won precincts 1, 2, 4, and 5 by just 31 votes — the “South Side” really made the difference. And you can add the “downtown” precinct (11) to that mix. There, Yes tallied 111 votes more than No.

One of the chief purposes of the City proposal was to give stronger power to the new City’s Brazilian community — some 25 percent of Framingham’s almost 70,000 people. The four Brazilian precincts will now elect two district Councillors with significant authority that should attract — and maybe inspire — ambitious politicians. That and the new Mayoral office, sure to be a significant one state-wide, given Framingham’s strategic location halfway from Worcester to Boston and close to Route 495, the Mass Turnpike, and Route 128.

Sanctuary Cities

Last night the town of Ipswich’s selectmen voted unanimously to make it a sanctuary. Five nights prior, the City of Salem voted the same. Boston, Newton, Cambridge, and Somerville have already voted likewise; other of Massachusetts’ 351 municipalities are sure to follow.

Just as our state did after the enactment in 1850 of the notorious Fugitive Slave Law, so we do today : resist kidnappers of our vulnerable neighbors. May our resistance to the Immigration Police strengthen and broaden — and forge a new “underground railroad” if need be — until the entire state becomes safe for those who have fled one oppression only to become another oppression’s target once again.

—- Mike Freedberg / Here and Sphere

THE CONSTITUTION : AN EXPANSIONIST DOCUMENT

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^ Mr. Justice Brennan, the judicial voice of Expansionism : “the Constitution is for the little guy”

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It is time to bring into the argument over Judge Gorsuch the name of that great voice of Constitutional expansionism, Justice Brennan, who served on the Court from 1956 to 1990.

Much has been made, during the hearings concerning the President’s nomination of Judge Neil Gorsuch to the Supreme Court seat now vacant, of the Constitutional jurisprudence known as “originalism.” In a column that I posted at this blog about six months ago, I tried to explain what “originalism” means and why it must be taken very seriously as a means of interpreting the Constitution. (If you would like to read my presentation, you can do so here :  https://hereandsphere.com/2017/02/01/the-gorsuch-comination-and-its-political-consequences/?frame-nonce=cc802aa8bd )

Originalism is not, of course, the only major tradition of Constitutional interpretation. In Sunday’s Boston Globe, Professor Mary Bilder argued a case for Constitutional law quite opposite. In her view, the long negotiations that led through several drafts before a final version of the Constitution was agreed to suggest that for the Framers, the meanings of the various clauses therein were pretty much ad hoc — good for the moment but hardly binding upon future situations unforeseeable and unknowable. She argues that the Constitution can be altered in an equally ad hoc way as circumstances seem to require.

I find her view radical in application and unsupportable in fact. Negotiations precede almost every agreement; they lead up to every contract. In the law of cases and controversies, settlement negotiations, and their terms,. are inadmissible as evidence, and the reason for that is obvious : unless agreed to, the various proposals made in negotiation are nothing but a suggestion — no agreement is attached to them at all until they are actually agreed to, at which point a suggestion becomes an enforceable agreement. It is certainly helpful to examine the Framers’ negotiations as an aid to discerning what their actual agreements meant; but it subverts the entire notion of agreement to claim that suggestions made during discussion can be imported into the agreement itself.

We need not credit Professor Bilder’s overreach. A case for an ezxpansionist view — Justice Brennan’s view, the view that there is judicial urgency particular to an actual case — and that this urgency cannot be argued away by recourse to textual analysis — of the Constitution can be made within the four corners of the document itself.

The Constitution grants to Congress power to do many things in the future, things left as general as feasible:

The Congress shall have power

Thus we see that the Constitution itself, as agreed to, witho0ut having to import into it potential clauses that were NOT agreed to, offers interpreters a basis for applying its covenants to events well into the future and far beyond the lives or foresight of any or all the Framers.

Furthermore, the Constitution has been amended; and those amendments have equal standing with the original document because they have been adopted in accord with a procedure agreed to. Yet why amend the Constitution, rather than merely reapply it ad hoc ? And, conversely, why do not every Constitutional dispute require amendment to settle ? Here we see two contrasting principles which Professor Bilder do0es not discuss. On the one hand, amendment has been necessary, or felt to be necessary, in cases when the Supreme Court has held a proposed law to contravene the Constitution, or when the amendment in question clearly altered a precept in the original agreement (such as female suffrage, or the two term limit for President). Yet major Supreme Court decisions — as well as those that required an amendment to change — have changed what successive generations had thought the Constitution to require; and the only way in which those Court decisions can operate is by changing Constitutional assumptions.

Some such changes have been seen by many as an overreach: but for the most part that’s because those who see overreach have had their own, contrary assumptions about the document — assumptions that have no more claim to being clear than the interpretations given by the Court.

The difficult here cannot be willed away. The Framers did not specify rights of privacy, or abortion, or contraception, not because they opposed these, or sanctioned them, but because (1) they did not exist and (2) had they existed, they may well have been seen as too specific to command explicit mention in the general language that pertains throughout the Constitution. Again I would argue that the general nature of Constitutional covenants anticipates that future disputes are both foreseen and not to be prejudged; and that only basic principles are to be maintained when such unpredict6ed disputes come to the judging table.

The Constitution exists to provide everybody subject to it a path to embrace it and to be bettered, civically, by it. The framers did not — could not — know who the people would be who their agreement was intended to bind, and the language of their agreement contains within itself that invitation to embrace the unanticipated : unexpected people and unimagined events; and it is for today, the day of judging, that a judgment must apply these words that invite — even beg for — sensible elucidation.

—- Mike Freedberg / Here and Sphere

 

IMPEACHMENT, AND THE RUSSIAN ATTACK UPON OUR DEMOCRACY : WHAT CAN, OR SHOULD NOT, BE DONE ABOUT IT ?

pence

^ if there is impeachment, he becomes President. Then what ?

—- —-

Mr. Trump may well be impeached. Certainly there are numerous grounds for doing so : failure to take care that the Laws be executed; emoluments; collusion with Russia’s cyber war to aid his campaign; and many more potential cases. Yet impeachment, as traumatic a sit is, is the easy part. If convicted by the full Senate, Mr. Trump ceases to occupy the Presidency. Mr. Pence becomes President, end of story.

As I see it, that is not the end of the story at all. If the collusion with Russia’s cyber war is proven, the entire election becomes illegitimate, a coup rather than an election. But how to respond ? Not simple at all. Here’s how I see it :

1.It is almost impossible to prove that any collaboration by Mr. Trump with Russia caused his win. People vote by secret ballot. Even if thousands of voters in several close-run states were to come forward and say that stuff circulated via Russian cyber attacks changed their vote, how can that be proved a year or more after the fact ?

2.Even if Russia’s war upon our election, with collusion by Mr. Trump, COULD be proved to have changed the result, there is no Constitutional provision for calling a new election, nor could any such new election be fair; the charges of treason would override every other issue, and it is imperative that our elections be decided on our own issues, not by treasons and foreign attacks.

3.Treason is not a new crime. It is, in fact, a very common one in the long history of Western Civilization. The penalty for it is always been personal to the traitor: he (or she) is cast out, the system continues on as if the traitor had never been. (Note : in many treasons the family of the traitor has also suffered, and his or her nearest abettors. But the general principle stands.)

4.The difficulty for us is that our Vice President owes his election to that of his ticket leader. Thus the treason of Mr. Trump taints the election of Mr. Pence. Does that disqualify him ? How can it ? I say it does not. When Richard Nixon resigned under imminent impeachment, his vice President took office. Granted that Gerald Ford had not been elected; but he had been designated. Does that precedent control ? I say it does.

5.Hillary Clinton and Tim Kaine could well claim, in the scenario I am setting forth, that they, not Mike Pence, should take office. But there is no legitimate way that they can do so. One can assert that, as Clinton and Kaine won the popular vote by almost three million votes, the popular vote, in a treason context, should control: but there is no Constitutional basis for this assertion. We can amend the Constitution to change the electoral vote system to a popular vote: but that is a revolutionary change that violates the first principle of my scenario, that a treason should affect only the traitor, never the system.

6.As I see it, the proper outcome is to let Mike Pence be sworn in as President and then,m at the next regular election, in 2020, let the voters decide whether to continue him in office. This is what happened with Gerald Ford.

All that remains to be discussed is, how do we prevent future Russian, or any other nation’s, cyber war upon our system ? And how do we prevent treasonous collusions by our own candidates ? There’s no easy answer, but clearly our national government is now fully aware of the gravity of foreign cyber war — I think nobody in Washington had any idea that what was done could, or would, actually BE done — and will take all the available cyber steps available to stop a repeat occurrence. Our democracy is rarely quick off the mark; our enemy usually gets the fi8rst blow. But we are also implacable in response, and that is what our CIA, FBI, NSC, and military IC need now to be. They are aware of it now and, I am sure, drastically focused on stopping it.

Lastly, the mainstream media needs to be more vigilant about foreign nations’ cyber attacks upon us. There should never be any room for “fake news.” The law of libel, aggressively applied, can put an end to most of it, and should. But the voters also bear prime responsibility. It is OK — maybe — to be fooled once, but not twice.

We need to apply to all news items Ronald Reagan’s brilliant epithet : “trust, but verify.”

—- Mike Freedberg / Here and Sphere