Tuesday, October 25, 2016

America is already great

One of the genuinely bizarre aspects of this election cycle is the slogan that's central to the campaign of Donald J. Trump, emblazoned in plain script on a baseball cap:


I have spent much of the last year pondering what that slogan is intended to convey.  It implies that America was once great, but that it no longer is, and that some change needs to be made to make it great again.  I will admit to being deeply ambivalent about this slogan.

It would be easy to write off Mr. Trump's supporters as mostly white, mostly male dim bulbs whose principal lament is that they are living during a time of the ascendancy of the minority.  These people view prestige and prosperity as a zero-sum game; they believe that the body of straight American white men, of which I am one, must lose something in order for a black person, or a woman, or an immigrant, or a homosexual to gain something.  It's a better time today to be a person of color, or a woman, or gay, or transgender, than at virtually any other time in our history, so it must be a worse time to be a straight white man. 

And maybe there's something to that.  It's hard to tell someone who has very little that the little they have came as a result of some privilege they didn't realize existed.  Perhaps on some level, they recognize that competing without the advantage of the cultural weights placed on minorities might result in them losing some fights they now win.

It's no wonder they're angry.  And it's no wonder they would get behind someone who tickles their emotions in all the right ways.

In the opening scene of the Aaron Sorkin-led HBO series The Newsroom, Jeff Daniels, playing newsman Will McAvoy, is giving a panel seminar at a university, and he is asked what it is that makes America the greatest nation on earth.  After seeking three times to demur, the host pushes him for a "human answer."  McAvoy shocks the audience, then, by saying that it's not, then proceeds, in a classic Sorkin monologue, to explain why we used to be great and why, having lost so much of that, we're not.  And there is some justification for the position.

The truth is that we have never quite lived up to our promise.  Slavery is a deep and permanent stain, not only on our history, but on our Constitution, which enabled it and allowed its exploitation.  We have never done right by our First Nations peoples.  We have exploited immigrants from Ireland, from China, from Mexico.  Despite the almost unimaginable wealth of resources we have, millions of Americans live in crippling poverty.  We have oppressed women, sexual minorities, racial minorities, religious minorities.  We have burned up far more than our share of the world's energy reserves, and contributed massively to at least three global environmental crises in my lifetime:  global warming and climate change, the thinning of the ozone layer, and the pollution of the world's oceans and resulting damage to food fish stocks.  We have interfered in democratic governments around the world, often contrary to our own principles.  We have started wars and led coups d'etat.  We remain the only nation to use nuclear weapons in combat.

The debit side of our ledger is full of misdeeds, so full, in fact, that it would not be difficult to imagine an objective observer concluding that, on the whole, the American Experiment has been a disaster for the world.

And yet...I take a different view.

In spite of all of these terrible things, we are still great.

In fact, you might even say that we are great now because of all of these things, and because of what we have done to correct them.

After all, it is my belief that whether you are great or not depends not so much on whether you commit wrongs, but on what you do to right them.

This is as true for nations as it is for individuals. No one is perfect.  We all do things that we shouldn't.  We all do damage to others.  It's inescapable.  So there must be some other way to judge whether a person or a nation is great.  I choose to believe that greatness resides in the impulse to right wrongs.  And no one is better at that, as a nation, than we are.

I can remember being about 8 or 9 years old, and reading about a famine in Africa, in Ethiopia specifically, and seeing pictures of young children with bellies distended from malnutrition, and of impossibly thin people, quite literally starving to death.  There were famous appeals--Band Aid and USA for Africa, among others--centered on raising money to send food aid to Ethiopia.

At that time I was also becoming politically aware, not just in terms of politics in this country, but of the geopolitical events that shaped the 1980s.  We learned about glasnost and perestroika, Russian words meaning "openness" and "restructuring" that defined the efforts of Mikhail Gorbachev to reform the Soviet Union, and that caused me to think about what, precisely, they were "restructuring."

The significance of these things in my own consciousness and self-image cannot be understated.  They were important to developing my concept of what it means to be an American, what our place is in the world, and why we do the things that we do.  Perhaps most importantly of all, I began to recognize what a stroke of luck it was for me to be born here.

I believe, despite all of our many faults, that this country is great, that it has been great since its founding, and that, all things considered, on balance, it is indeed not only the greatest nation on earth, but also the greatest nation that has ever existed.

Yet Trump and his followers disagree.

My first instinct, with confronted with personal conflict, is introspection.  Where is the error in my own thinking? I ask.  If Donald J. Trump, or any other political figure, or my next-door neighbor or closest friend implies rather strongly that America is not great, what are the factors that lead them to a vastly different conclusion than I have drawn?

I've watched them, the Trumpites, very carefully, to learn the answer.  And they have spoken their answer loudly and clearly.  They believe that America is not great, that it has lost its way, precisely because of all of the reasons why I believe this country is great.  They resent the broadening of civil rights.  They resent the equality of women, of racial minorities, of sexual minorities.  They hate marriage equality and they would dearly love to turn back the clock to the 1950s, or, sadly, the 1850s.

See, all those reasons that I cited above, about how we've fallen short of our promise from time to time--for the average Trump voter, those are good things.  When Trump says he wants to make America great again, he's talking about rolling back the progress we've made--depending on your perspective--over the last 50-150 years.

This is not the kind of "greatness" to which we should aspire.  We're better than that.

In short, to quote Mr. Trump's opponent, America is already great, and we are great because we are good.  We are great because we want to get better.  We want more people to live in freedom and to prosper.  We want to lend a hand to those in need.  We want to cure disease and end wars and protect the innocent and to stop the crimes of the guilty.  We know that our strength is only as good as what we do with it, and we know that we are stronger when we work together to do good things, rather than when we emphasize our divisions and work to exclude others from the American Dream.
We have come too far, fought too hard, shed too much blood and sweat, and suffered too much heartache to return to the "bad old days."  

Thursday, October 13, 2016

On the brink

It has been a while since I've foisted one of these blog entries on the 2 or 3 people who read this blog--just over three months--and for that I am sorry. It's been an extremely busy summer, and something had to give.

I am spurred to write, however, by some genuinely disturbing developments in the presidential campaign.

There are not many "things" that I love in this world.  People, sure.  Ideas, sure.  But I am at the stage in my life when things matter to me only as much as they are useful to me.  I have lost virtually all of my sentimentality toward objects.

But there is one thing that I love, that I have genuine reverence for, that means more to me than just about anything in the world, save my family.  It might sound corny, but that thing is the Constitution.

In the last couple of weeks, the Donald Trump campaign has imploded.  His polling numbers are showing a precipitous decline, and he keeps making unforced political errors that have cost him support.  At this point, I am reasonably confident that all Hillary Clinton has to do to get elected is keep quiet and let Trump continue his nose dive. 

I have had little doubt about this development since I asked the Republicans to nominate Trump about 15 months ago.  People thought I was joking; I wasn't.  I knew that Trump would not be able to sustain a long campaign without becoming a caricature of himself.  I think Hillary could have beaten pretty much anyone in the GOP field--she would've had a tough time with John Kasich, I think--but Trump held the right combination of appeal to the average GOP voter and utter political incompetence.

He's going to lose.  You can read it on his face, as his comments become increasingly volatile and desperate.

But there have been three developments over the last couple of weeks that I regard as exceptionally dangerous--an existential threat to our Constitution that has not been seen since the election of 1860.

The first development was Trump's decision to invite to the second debate a woman who, as a 12-year-old girl, was raped by a man whom Hillary Clinton was appointed by the court to defend.  She was reluctant to take the appointment, but as a new female lawyer in a small town, she did not believe she could turn it down without incurring the wrath of a judge before whom she would likely have to appear many times.  She strongly believed her client was guilty.  She put him through a polygraph, which he passed--and which she noted later, with a chuckle, that the experience undermined her faith in lie detectors.  But, as all attorneys must do, she gave him the best defense she could, guilty or not.  She hired an expert witness to test some evidence--a pair of the victim's underwear, allegedly with a semen stain--that the Arkansas State Crime Lab had already tested and found consistent with the defendant's blood type.  Recall, by the way, that this was 1976, well before the availability of DNA testing.  All they could do at that time was test for blood type, a blunt instrument, but effective at ruling people out.

And it turned out that the crime lab had destroyed the evidence in the process of testing it.  For that reason, she was able to get that evidence excluded (properly).  And because the rest of the prosecutor's case was weak, she got them to agree to a one-year jail term and five years' probation on a plea bargain; he could've gotten 40 years on the original charges.

Now, what happened to that girl was a terrible thing.  I don't think anyone would argue otherwise.  But Hillary's involvement in the case had nothing to do with what happened to that girl.  Hillary's involvement was to provide the defendant with the defense the Constitution says he was entitled to.  That is how our system works, and to some extent or another, the existence of the right to counsel in criminal prosecutions is very likely the most fundamental right that an individual has in being able to stand up to the government.  It is un-American to criticize an attorney for defending a criminal defendant, especially on an appointment.  But Trump has now done so.

The second development was the response from the Trump campaign to an article in the New York Times detailing the allegations from several women who claim to have been groped or otherwise sexually targeted by Trump in the past.  Recall that in the second debate, under persistent and heavy questioning from Anderson Cooper, Trump denied that he ever groped a woman as he described in the Access Hollywood video that became public last Friday.

That kind of denial is like waving a red flag in front of a bull.  Several women have come forward to allege that he did just what he claimed never to have done, and the New York Times has reported their allegations after corroborating their stories.  Trump's response:  To have his attorney write a letter to the Times, calling the allegations libelous, and to demand a retraction with threats to litigate.

For its part, the Times has stood its ground, and good for it.  Even if he doesn't know it, his attorneys should:  Public figures are fair game when it comes to comment on matters of public concern.  The First Amendment guarantees the right to publish such allegations, even if they are false, as long as the publisher is not motivated by actual malice, a standard that in practice is impossible to meet.  Fun fact:  In the Supreme Court case that established that standard, the defendant was none other than the New York Times.  (See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).)

Trump's threat of a lawsuit--which is far from his first against the press--is inconsistent with the First Amendment.  The free press is an important part of our country's Constitutional foundation.

The third development has come more subtly.  Now that it's clear that Trump's campaign is failing--slain by the candidate himself and his inability to keep his mouth shut--he has begun to murmur about a "rigged election."  Now, to be clear, I think we fall well short of fully fair elections in this country.  There are serious questions, questions that deserve examination, about gerrymandering, voting apparatus, registration issues, and concerted efforts to keep certain (pro-Democratic) groups from voting.  But those problems are primarily structural in that they are geared toward gaming the outcome of an apparently fair election, not toward "rigging" the election in the sense of falsifying the outcome.

Our elections are not "rigged."  By and large, the results we will receive on the night of November 8 will reflect the votes as they were actually cast.  Any "rigging" that occurs is at least a step removed from that:  gerrymandering that allows one party to maximize the effectiveness of the votes it receives; election officials who decide to "purge" voting rolls based on spurious criteria; voting machines that don't work properly or that are arranged to make it difficult for votes to be cast; and onerous registration requirements that deny citizens the ability to exercise their voting rights.  We can and we must do something about those things, but no one is sitting in a lonely county clerk's office flipping vote totals.  The votes we see will be the ones that were cast.

But Trump says otherwise--and that's something no major-party candidate has said since the election of 1860, in which Republican Abraham Lincoln prevailed over a fractured Democratic Party, and which led directly to the Civil War. Not even Al Gore, who has as strong a claim as anyone to having been the victim of a rigged election, allowed himself to make that kind of statement.

Trump knows that many of his supporters are volatile.  Many of them are looking for an excuse to use the "Second Amendment remedies" he praised at one point in the campaign--a thinly veiled threat of violence if they are unhappy with the result.  That, too, is against the very concept of our Constitution.  Our system provides for free and frequent elections, with transitions based on voting, not violence.  If you cannot commit to the orderly, reasonable, nonviolent transition of power from one administration to the next, then you have no place holding office in this country.  Our Constitution demands at least that much.

When I became an attorney, I swore an oath to support the Constitution of the United States.  Though there were other elements of the oath of my office, that was the first part, clearly set forth at the beginning and clearly the most important part of the oath itself.  That oath is much the same as the oath sworn by every officeholder in this country.  It is implied and imposed on all of us.  After all, it is our Constitution that makes us who we are as a people--not our national origin, or our race, or our sex, or our color, or our religion, but our common belief that the Constitution is the supreme law of our land.  We owe it to ourselves and to those who come after us to guard against all who would do damage to it, Donald Trump and his supporters included.