Across The Great Divide

We apparently have arrived at a new high, or more appropriately – low, in cultural divisions. There are armed men in full camo on the steps of statehouses and courthouses. There are shaming comments on social media, from all perspectives. Who did they plan to shoot? Why do you need a rifle to peacefully protest your right to be an ass? Maybe this is just a new incarnation of the divide we were already living with.

There is the “live free or die” perspective – which takes on a new and very real feel. Those who won’t wear masks, who don’t socially distance and who truly believe that this is all a bunch of bs, or a hoax, or some weird conspiracy. The rate of growth of conspiracy theories is astounding, but that is a rant for another day. Since I am in the wear a mask, stay home as much as you can and social distance camp, let’s talk about live free or die.

The slogan for this perspective should be “I will live free and you will die.” As happens more frequently than not, folks are waving the constitution like a suit of armor. Don’t get me started on the right to bear arms…to form a militia for the common defense. For those who wish to argue with me, here is the language:

“A well regulated Militia, being necessary to the security of a free State, the  right of the people to keep and bear Arms, shall not be infringed.”

So now it is the right to assemble. …[T]the right of the people peaceably to assemble[.]” This poses the now somewhat timeworn issue of your right to yell “Fire” in a crowded theater. The core idea of this famous Holmesian quote, not at all timeworn, is that the exercise of every right has a corresponding burden or obligation, generally on someone(s) other than the person exercising the right.

So how do you balance? An excellent analogy is travel. Courts have long found that an essential element of “liberty” is the right to travel freely. But the courts have also long upheld multiple restrictions on that right – the need to have a valid license, traffic restrictions, the need for insurance, DUI laws – for example. So your right to travel is balanced against my right to be safe from unlicensed, uninsured and impaired drivers.

And in the same way, your right to free speech is balanced against the public good, or damage, that the speech may cause. So back to the point. Your right to go out in public without a mask, gather in large groups and ignore social distancing places what may of us consider an undue, unfair and unbelievable burden on the rest of us.

If you read credible and unbiased scientific articles with real data, it is clear that, for instance, religious gatherings are one of the prime “clusters” of illness, along with nursing homes and extended care facilities. It is also clear that if you ignore New York, which is in total lock-down, the rest of the country is still on the upside of the curve. You also know that you can spread the virus most efficiently before you have symptoms, are tested or are diagnosed – for up to two weeks. You are essentially as impaired and dangerous as that drunk driver who is breaking the law.

Now I have to go out for groceries occasionally. And I am stunned by the number of people not wearing masks, ignoring the distances and generally walking around as if none of this ever happened. So your right to “live free”, maskless and in close groups, should be balanced against my right to live at all. This exercise of your right- to ” live free” – imposes a possible death penalty on the rest of us. The constitution is not a suit of armor, it is a living document that provides us with a framework for our democracy. Democracy is a living framework that must and does flex with the times. And of course there are a lot of us going out with masks, maybe gloves, wipes and taking good care.

The exercise of every right has a corresponding burden. When you exercise your rights, there is always a cultural cost. Granted when you exercise your right to speak, I don’t have to listen but there are boundaries; when you exercise your right to assemble in your neighborhood, there are rules about what you can do; when you exercise your right to carry a gun, there are laws and restrictions about what you can do with it. Based on my current experience, I am tempted to tell you where to put the gun. Instead I will just say wear a mask, stay away from me and unless you are a constitutional scholar, keep your constitution to yourself.

Stay in touch!

Democracy Is Not For Whiners

Ok, I am so tired of everyone’s facebook entries, tweets, etc., today. I can’t say how many people said, in essence, my vote doesn’t count.

What part of your vote always counts do people not understand? As a woman, all I have to do is think about how recent it is that women were allowed to vote. All I have to do is think of the suffering, the beatings and jailings, that brave women endured to give me the right. How dare I squander the privilege. But… There is a difference between winning and having your vote count.

I am a constitution defending geek. And in that tradition I say, and believe, that your vote is the most precious gift your democracy gives you. It is your voice, your chance to say “I disagree”. If one side won by 100% of the vote because the other half stayed home there would be no mandate for elected officials to think about all the electorate once they take office. When you win office by 1% of the vote you darn well know that there is power in the other 49%; that your political life may be short lived.

You vote to be heard, you vote to participate, you don’t always win. That’s the thing about majority rule… the majority rules. You speak your piece and then move on with the business of life, or governing as the case may be. The whole issue of gridlock and elected officials who don’t seem to get this currently is a discussion for another day. But this is the nature of the democratic process.

It is hard to say your piece and lose. It is demanding to accept the will of the majority, particularly when you deeply disagree with the apparent will of the majority. But there is no alternative. There is however, good news ~ there will be another election, another chance to speak, to vote, to win. But you have to wait and work for that day. Those of you who are like minded have to work together to convince another 3 or 4% (in the 51% scenario) that you are right. When that happens, you will win and the other will be the 49%, waiting for you to forget that they are almost half of those represented.

[tweetshare tweet=”Nobody likes to lose but all of us must, from time to time, in a democratic society. Clearly, democracy is not for whiners.” username=”@trienahm”]

Stay in touch!

Elena Kagan and Anti Semitism On the Rise

Elena Kagan is nominated to the Supreme Court and anti-semitism rears its ugly head in American. Constitutional and intellectual considerations are less important than the religious makeup of the Court.

In the last few days I have read more anti-semitic trash than I can wrap my head around.  Everywhere I look there are articles about the fact that the appointment of Elena Kagan will, if she’s confirmed, result in a Supreme Court made up entirely of Jews and Catholics.  The first comment I heard about it was from my Rabbi several weeks ago.  I thought it was interesting and so did he.  He spoke of diversity and history, education and curiousity and the Jewish legacy of questioning and learning.  He most specifically did not speak of any idea that somehow the Court would be “skewed” or manipulated as a result of the religious makeup of the Court.  I am shocked that many of the comments I have read have been in Jewish publications! First, I should say that I am a lawyer by training and I spent most of my working life as a public defender; whose primary job, I believe, is to defend the fundamental principles contained in our beautiful constitution.  I believe deeply in the freedoms embodied there and that they comprise the essential safeguards of our society, the first and last protection from unchecked power, often kown as fascism.  Next, I believe that those who serve as jurists in our Federal Court system generally feel the same way.  Often they share different beliefs about how best to interpret the constitution which, like the Torah, should be a living document, interpreted to be relevant in the modern world.  What constitutes judicial activism is a controversy that has gone on for decades; centuries?  And that debate is a healthy one, the different views keep our system in balance.  Those who serve on the Supreme Court, I believe, are always changed by that service.  Witness the number of democratic appointees that have turned conservative and republican appointees who have turned the other way.  They should be changed.  The responsibility of those who serve on the Supreme Court is awesome in my opinion and I believe that most who serve take that responsibility very, very seriously.  The one exception currently being Clarence Thomas but I will save my opinion on that for another day.  So, what stands out most is this.  When the entire Court, for virtually all of its history until the last decade, was white, male, protestants, nobody complained.  There was no talk of diversity, or the lack thereof.  There was no talk of a “skewed” Court because of the religious, gender or racial makeup of the Court. So instead of one protestant there will be none. Why do so many care so much all of a sudden about the religious composition of the Court?  Look around, our country is becoming more and more “diverse” every day.  My son’s friends are Hindu and Muslim, Jew and Protestant, with the Protestants in the minority.  The Court should be comprised of the best and brightest, the most thoughtful and the most caring.  The Court should be comprised of those who, like Elena Kagan, have dedicated their lives to learning the law, living the law, teaching the law and loving the law.  Why do so many care so much?  Because racism and anti-semitism are all too alive and well here in the land of the free.  It may be better but we are not done yet.

Stay in touch!