“We Hold These Truths To Be Self Evident…”: Enlightenment vs. Evangelical Amercia

Reading the news about American politics these days feels like I’m watching a slow motion train wreck. It’s much more than the nut job reality television personality who inhabits the oval office, it’s the whole atmosphere of combat politics being played out like some dystopian reality television show that disgusts us while captivating our attention.  Entertainment politics that produces almost nothing other than tax cuts for the wealthy and division among the masses.

American Politics Are Like Watching A Slow Motion Train Wreck

The latest bit of insanity has been states like Alabama and Georgia passing laws intended to criminalize abortion even in cases of rape, incest, or severe fetal deformity. Florida hasn’t joined the crazy parade yet, but it looks like we may soon go down the zealot rabbit hole as the Republican Party morphs itself into an American version of the Taliban, armed with both guns and zealotry. State Representative Mike Hill, from Pensacola,  recently said he intends to submit anti-abortion legislation similar to Alabama and declared that G-d told him to stop pursuing restrictions that allowed for exceptions in cases of rape, incest, and the health of the mother. 

I find it strange that nobody seems to question whether Representative Mike Hill is truly a modern day prophet.  Hasn’t history shown us enough false prophets that we should at least be skeptical about such claims? Incidentally, this was just a few days before Representative Hill seemed to be in agreement with a constituent’s suggestion that Florida should enact a law providing for the execution of homosexuals based upon the constituent’s understanding of the Bible.  I suspect that neither Hill nor the constituent have ever actually read the Bible.  I say this because during that same town hall meeting, when bashing the Supreme Court to his constituents, Representative Hill told them that the Florida constitution doesn’t contain a privacy provision.  Representative Hill is either a liar, or he’s never read the Florida Constitution and probably shouldn’t be talking about it.   Article 1, section 23 says:

Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”

As a supporter of reproductive rights, and having fought to protect women’s rights to make healthcare decisions during their pregnancies, I feel increasingly anxious about the direction American law may take in the near future on this and many other matters.

Critical Thinking Skills

As person trained in law and science, I spend a lot of time challenging my own ideas and perspectives on any subject that I’m trying to understand, which is what I’ve been mentally doing with this and the many other bizarre political happenings of our time. 

I think the answer is found in the reason there is this marriage between evangelical Christians and “conservative” politicians and pundits such as Donald Trump, Newt Gingrich, Rush Limbaugh (a group, who collectively have been married 10 times). The lack of moral compass among these men has been well documented in the press, yet they remain heroes to many whose identity is tied to biblical morality. 

The common ground between these two seemingly disparate groups isn’t morality or religion.  It’s the rejection of Enlightenment thinking, which I call “evangelism” and it poses a direct threat to American democracy which is rooted in Enlightenment ideals such as liberty, progress, tolerance, constitutional government, and separation of church and state.  It was Enlightenment ideas which undermined the authority of the Church and monarchs and gave rise to the revolutions of the 17th and 18th centuries, such as the American Revolution which created the United States. 

Evangelism is not simply a religion, but a push-back against Enlightenment thought and is an outright  rejection of science, reason, tolerance, and natural rights.  It seeks to replace data driven analysis with faith and belief, progress with tradition, and universality with tribalism.

The Enlightenment was an intellectual movement during the 17th and 18th centuries that emphasized science, reason, and a belief in natural rights. The Enlightenment was a potent antidote to the religious stranglehold of the day where the Church and government were entwined and religion restrained progress and the expression of ideas.   

Freedom of Speech and Freedom of the Press are Enlightenment Values

Evangelistic thinking is what drives the Taliban and other religiously based terrorist groups to want to attack the West.  It’s not that they “hate our freedom”, it’s that our science, reason, and tolerance challenge their beliefs and societal structures.  Trump and the members of the fascist posse routinely reject science, reason, calls for tolerance, and any notion of natural law. In many ways they have much more in common with the Taliban than with founding fathers such as Ben Franklin and Thomas Jefferson. They are clearly anti-Enlightenment thinkers who, while not adopting Christian Evangelical religious beliefs, hold an Evangelical mindset.

Allowing Evangelism to triumph over enlightenment thought would be tragic.  To say that Enlightenment thinking transformed the world for the better is an understatement. Rather than stripping us of our humanity through a loss of divinity, Enlightenment thought brought out our very best, stopped historical injustices, and gave us freedom and leisure on an ever increasing level that was previously unimaginable. 

Prior to the Enlightenment, if a child was dying from disease, it was attributed to divine will.  Generations of mothers prayed over their sick children to no effect.  The Enlightenment brought the application of science and reason to fighting disease and sickness and, in a few generations, reduced the infant mortality rate from 20-30% in colonial times to 0.05% in modern times.  In just over two centuries, life expectancy has risen from approximately 30 years worldwide to more than 70, and no country in the world today has a lower life expectancy than the highest country did in 1800. 

Science has allowed us to improve our lives

Not only are our lives longer, but we enjoy higher quality lives than at any time in human history.  Famine used to be a regular occurrence, but through scientifically based agriculture (rather than praying for a good crop) what famines do exist are largely the product of political conflicts rather than natural disaster. In the United States one of our fastest growing and most significant health problems is obesity, a disease resulting from overabundance rather than scarcity.  Compared to famine, I prefer an obesity epidemic.

Enlightenment thinking brought about the end legal slavery, massively reduced racism and ethnic violence, emancipated the majority of women on the planet, and provided the highest protections in history for speech and artistic expression.  All of these things were accomplished in the face of Evangelistic thinkers who argued that such ideas offend their deity and that Armageddon is about to descend. 

Despite all we hear about violence and poverty, we have the lowest rates of global poverty in recorded history and the lowest rates of people dying due to violence and war in recorded history.  For a detailed examination of these facts, including statistical tables, I recommend Steve Pinker’s “Enlightenment Now”.

The Founding Fathers were Enlightenment Thinkers

If the United States is defined by any specific feature it is our commitment to democracy, rule by the people rather than by Kings supposedly appointed by G-d, is a product of the Enlightenment. Our nation is not a product of G-d or of any biblically ordained prophecy, but of reason, logic, science, and a deep belief in the natural rights of human beings. To state otherwise is to deny history.

Founders such as Jefferson, Franklin, and Madison were all students and followers of Enlightenment philosophers. They rejected Evangelical thought and most historians see them as deists (G-d created the world, but does not directly interact with it.)  They believed that all men were created with rights, a concept known as “natural law”.   We see this in Jefferson’s writings in the Declaration of Independence in which he wrote:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Thomas Jefferson was an Enlightenment thinker

Jefferson is clearly a describing natural law approach to human rights, one of the Enlightenment’s values. Note, Jefferson is not rejecting religion per se, he still envisions some sort of a creator, but he’s speaking of enlightenment values.

Despite, or perhaps because of, the amazing success and transformation of our world by Enlightenment ideas, it is between Enlightenment thought and Evangelism that is the battle ground, not just in America, but the world today.  Populist leaders word-wide are running on anti-Enlightenment messages, such as the anti-immigrant messages espoused by supporters of the Brexit vote.  These messages appeal to emotion, usually fear, rather than reason. 

We see Evangelical thinking promoted by politicians in modern America who call for “thoughts and prayers” when we experience yet another mass shooting from a crazed person with an assault rifle while our government refuses to fund research into gun violence. 

While Trump is hardly a model of Christian virtue, he is deeply evangelical in his thinking and in his absolute rejection of Enlightenment values.  Bothersome facts and data, such as those on climate change, he rejects out of hand, preferring instead his own mythology.  Where Enlightenment values encourage a respect and fair dealing with all other humans based upon the belief in natural law, Trump and Evangelical thinkers retreat into tribalistic thinking and view foreigners and strangers as lesser.  I want to stress here that when I speak of Evangelism, it may be wrapped in paper-thin religious dogma, but it’s completely divorced from an in-depth understanding of theology such that the most repeated commandment in the Bible “Do not oppress the stranger” is ignored. It is a mistake to confuse evangelism with religion. I believe that one can be religious and not be Evangelistic.

Loss of reason and truth gives rise to conspiracy theories

Once people abandon the demand for reason, scientific inquiry, and fact based conclusions, conspiracy theories can run rampant.  Recall the alt-right conspiracy theory known as Pizzagate, where Trump supporters spread the rumor that Hillary Clinton was running a child-sex ring out of a Washington, DC pizza restaurant. Conspiracy theories are the stock and trade of propagandists such as Rush Limbaugh who is a master at innuendo based upon selective fact-picking.  Of course, even Rush Limbaugh doesn’t come close to the outlandish conspiracy theories promoted by websites such as Info-Wars who convinced followers that the  Sandy Hook murders were staged and that grieving parents were fakers.   

It is tempting to think that Evangelism is strictly a right wing philosophy, but that would be unfair.  The left has its own forms of Evangelistic thought, although it has failed to achieve the political power of right wing evangelist thought.  For example, the anti-GMO movement is based largely on emotion and lacks any rigorous scientific support for its claims that genetically modified foods pose a health risk. Likewise, there is very little scientific support for claims that there are health benefits to organic foods.  Another example would be leftists who object to research into nuclear power as an alternative to fossil fuels. We’ve even seen left-wing conspiracy theories that the U.S. government orchestrated the September 11, 2011 attacks.  Is any of this that much crazier than the American right’s denial of climate science?  I believe that one very rarely finds Enlightenment thought at the political extremes because extremism is almost always disconnected from reason and logic. 

In my field of law I believe we’re seeing this anti-Enlightenment  movement in the Federalist Society which, founded in the 1980’s, now yields a lot of political clout and which promotes benign sounding legal theories of “legal restraint” and “textualism” as remedies for what they describe as “judicial activism”.  Basically, the Federalist society recruits 1st year law students into its membership and then indoctrinates them into its fundamentalist legal philosophies which they claim to be the “true” and “original” way of interpreting laws and the Constitution.  For members of the Federalist Society, adherence to this legal doctrine is paramount regardless of the outcome.  They believe that justice is no longer a concern of the law and they believe that Courts should only recognize those rights specifically stated in our Constitution.    

The Federalist Society poses a direct threat to Enlightenment values in our legal system

Our courts are currently being packed by members of the Federalist Society and I worry that we are soon to be ruled by a generation of judges who believe that they can interpret the law with the mind of an 18th century framer of the Constitution, and that emerging standards of justice are not their concern.   In their minds, Courts seeking to create justice, such as ensuring fair voting districts, is an “activist” activity and that they should divorce their thinking from ideas of justice. 

It may be that abortion isn’t as much about men trying to dominate women, but more about a part of a larger framework rejecting Enlightenment thought arising from a delusional belief by Evangelical thinkers that we can turn the clock back to an imagined golden time when science, reason, and logic didn’t discredit their narrative about the world and morality. Moreover, the men vs. women arguments worry me because I worry that such arguments will create division, alienating men from the up-coming battle to protect reproductive rights and Enlightenment values.  

Ultimately the struggle that our nation and world faces is much larger than any single issue such as abortion. Evangelistic thinkers are obstacles to human progress who seek to return us to an age in which we are ruled by people claiming divine right rather than the rule of law. If they succeed, America may continue to exist in name, but the spirit, the ideas and values that made us one of the great nations of history, will be lost. 

A Nation Tearing Itself Apart

I had to turn off the Senate hearing on the allegations of sexual assault by Supreme Court nominee Brett Kavanaugh.  Watching the hearing, I felt that I was witnessing a nation ripping itself apart and the demise of the rule of law that ensures the freedom of America.  

 When Kennedy announced his retirement, I wrote a blog post with the title of “Shitstorm at the Supreme Court”.  In hindsight, that title was a huge understatement. 

I started my law career as a defense attorney, and I’ve represented those accused of sexual offenses and I know all too well how emotionally grinding those cases are for the lawyers involved, much less the victims or the accused.  On social media, I see many of my friends denouncing Rachell Mitchell as she questions witnesses and I want to defend her because I’ve been her and I have had to cross examine victims of sexual assault.  I know how painful it was for me and how terribly conflicted it left me feeling no matter how humane I tried to be while also giving my client the zealous representation necessary in criminal defense.  I don’t have as much sympathy for the politicians from both parties who are turning this hearing into a spectacle and blatantly using it for political gain.  

I believe we are better off with the rule of law and civil trials than vigilante justice, so when I cross examine a victim of a crime, I tell myself that I am not only protecting the defendant, but the greater good. I believe we are all freer when the State has to prove ever single element of a crime before it can take our freedom and our reputations.  One of the major reasons I left criminal law was having to cross examine an 8-year-old victim who told inconsistent stories and had accused several other innocent people of abusing him. 

It is my hope that Judge Kavanaugh will withdraw his nomination, but I don’t think that’s going to happen.  I want him to withdraw because he is too polarizing a figure to sit on the Court at this point. I fear that, if he is seated, there will be a great loss of faith in the Supreme Court and that court has to be much greater than any individual.  People give their lives to protect the rule of law in our country.  Asking one very fortunate and privileged man to step aside in order to preserve the public’s respect for the Court is not too much to ask.

As I watch this hearing, I can’t help but feel that the future of the country is at stake.  I don’t mean who controls Congress or who sits on the Court, but whether we can continue to function as a democracy and as a nation.  We must find a way to step back from the intense partisan warfare that began on talk radio before jumping onto the internet and spreading like a disease through American society destroying communities, friendships, and even family relationships.  As I wrote in earlier post, democracy requires forbearance and restraint.  Just because you can pack the Court with Judges who terrify your political opponents or refuse to hold a hearing on a nominee from an opposing party president, or gerrymander election districts to ensure your party continues to win, doesn’t mean you should do it.  Such acts destroy the ties that hold us together as a nation and we get the complete and utter dysfunction we’re seeing in our government today.  History shows, dysfunction like ours leads to a loss of democracy and the rise of totalitarian rule. 

In my dreams, I would like to see Kavanaugh withdraw and another individual nominated from a list of nominees agreed upon by the leaders of both parties.  I would hope that the nominee would be an excellent legal scholar, and someone who adds intellectual and experiential diversity of the Supreme Court.  Hopefully, someone who graduated from a school other than Yale or Harvard.  Sadly, I know that I’m just dreaming, but I’m free to dream…for now.

Confirmation Chaos

I haven’t watched very much of the Senate confirmation hearings of Supreme Court appointee Judge Kavanaugh.  The few minutes that I did watch were so awful that I had to turn away and get my mind someplace else.  The confirmation hearings have degraded into a side-show spectacle of partisan politics that are undermining the legitimacy and authority of the once majestic United Supreme Court which is supposed to sit above politics and be an institution of reason that our nation can turn to with its most important and difficult legal questions.  In order to serve its role, the Supreme Court must be a court of all the people – Republicans, Democrats, Conservatives, Liberals, Progressives, Capitalists, Socialists, Black, White, Asian, the Religious and the atheist.  It is clear that many Americans, including many of our elected representatives, no longer see, and maybe no longer desire, an apolitical court.

I don’t know much about Judge Kavanaugh or whether he’d be a good Supreme Court Justice.  The truth is, it’s impossible know how well a Justice will perform until the robe is put on because, once on the bench, Supreme Court Justices often surprise us.  Consider that the most famous dissent in Supreme Court history was written by Justice Harlan in Plessy v. Fergusen, the case that, in a 7-1 decision, upheld segregation and created Jim Crow based upon the decision that “separate was equal”.  Most scholars and historians now view it as one of the worst decisions in the Court’s history.  If I had lived back then and looked at that Court, I doubt that I would have expected Justice Harlan to have been the lone dissenting voice of reason.  Justice Harlan was a supporter of slavery prior to the civil war and had grown up on a farm that owned slaves, yet he was the lone dissent in Plessy and other cases where the Court denied equal rights for Black Americans.

Also, it might surprise some to learn that when Justice Ruth Bader Ginsberg was going through her nomination process, there were those who were concerned that she might pose a threat to the decision in Roe v. Wade based upon statements she had made criticizing the decision during a speech.  Justice Ginsburg had commented that she thought the reasoning was incorrect, and that, although she agreed with the outcome, she felt the case should have been decided on equal protection grounds rather than on privacy.  These concerns did not cause great disruption in her appointment and she was confirmed by a 96-3 majority in a Congress that only had a slight majority of Democrats. Also, it’s important to note that it was Justice Scalia who recommended that President Clinton appoint her to the Court.

Speaking of Justice Scalia, it is well known that he and Justice Ginsburg became very close friends while on the Court together.   Justice Scalia, despite his clearly Conservative jurisprudence, was confirmed in a unanimous vote by the Senate that was composed of only a slight majority of Republicans.

Supreme Court appointments have become far too political and we’re seeing the result of this with this awful disgraceful confirmation hearing where  we see open warfare being waged between Senators who insult each other and many Americans in their comments. Part of the problem is that politicians are making promises to appoint judges who will produce politically favorably outcomes to hot button topics such as abortion.  This damages the process because it undermines our faith that we can come to our Courts and receive a fair hearing before a neutral judge.

The other issue that is lingering in the background of all this is Democratic anger and resentment over the Republican refusal to give a hearing to President Obama’s appointment of Merrick Garland.  Keep in mind, it wasn’t just Merrick Garland, the Republicans also refused to hold hearings on many of President Obama’s appointments to the lower Federal Courts, leaving many judicial positions unfilled.  Adding insult to injury, since gaining the Presidency, the Republicans have been basically packing the Courts with appointments of individuals, largely drawn from the ranks of the uber Conservative Federalist Society, who some feel are patently biased or unqualified judges. This unprecedented obstruction of a President Obama’s appointees, followed by gleeful court packing, has  greatly deepened the political divide in our government and our nation.  Furthermore, it undermines the dignity and the moral authority of our Judicial system.  I fear that it will take a generation before this wound is healed, provided the political divide does not consume our democracy and the rule of law before the healing can take place.

Lastly, as I listened to the Senators speak about each other, I felt a great sense of loss.  Senators spoke about each other and their political rivals as if they were discussing a foreign enemy rather than fellow Americans.  As I watch the rule of law being weakened by a profoundly dysfunctional government and witness a nation that it is tearing itself apart from within, I cannot help but feel that we at great risk of losing all that ever made America great.

Gardyloo! – What Justice Kennedy’s Retirement Means For The Rule of Law In America

There’s a lot happening in the law right now, and almost none of it is good.  I believe  we are entering a time that history will judge to be a dark age in American law and society. I fear that we may be witnessing the demise of our democracy and the rise of authoritarian rule.

With today’s announcement of the retirement of Justice Kennedy, the theft of the appointment of the replacement of Justice Scalia’s seat from President Obama, the complete disregard of Democratic or progressive interests in the appointment process, the recent slew of 5-4 decisions, and punting of other important decisions, I can’t help but feel that American law as I have known it is ending.  The future may see the election of more moderate individuals to the presidency or Congress, but the Courts are likely to be in the hands of ideologues for a generation to come.  This is damage that cannot be undone with an election.

Republican obstruction created a large number of vacancies on the Federal Courts that are now being filled by Donald Trump in what is the most aggressive and politicized court-packing in our nation’s history.  The individuals being appointed largely come from the membership rolls of the Federalist Society, an elitist hard-core conservative group.  These appointees are young, predominantly male, and 90% white, with no person of color having been confirmed since Trump has taken office.  A record number of these appointees have been deemed unqualified by the American Bar Association.  Indeed, the lack of qualification has become well known through the inability of one candidate to answer basic legal questions and his admission that not only had he never tried a case, but he had never even taken a deposition on his own.  Apparently, his firm didn’t trust him to handle a case, but Donald Trump trusted him to be a Federal judge with a life-time appointment.

A couple of weeks ago, I attended the Florida Bar Conference, where more than a thousand Florida lawyers gathered to discuss changes and developments in the law.  I’ve never seen such anxiety among lawyers nor have I ever heard such pessimism.  Time and time again I heard lawyers question whether the rule of law would remain in place until next year’s conference.

For some time, I’ve clung to the belief that the Courts would stand strong against Donald Trump’s authoritarian and totalitarian tendencies, but as I look at the decisions rendered in the past week, I realize that my hope is misplaced.  To date, although lower Courts have restrained President Trump, the Supreme Court has refused to do so.  Furthermore, when faced with questions such as the Colorado gay cake case or political gerrymandering the Court has effectively declined to rule by remanding the cases on technical grounds.

I believe that what we’re currently seeing is a strategy of appeasement, led by Justice Roberts, in hopes that the Court will survive this president and congress.  Given that the Court has to deal with a president who is clearly overtly hostile to, and not at all restrained about publicly denouncing, any court that rules against him and who is now threatening to remove issues such as immigration from judicial review, the Court is understandably intimidated.  Unfortunately, Congressional Republicans, who are also clearly afraid of incurring president Trump’s twitter wrath, show no evidence that they would back the Court in a fight with the President. Thus, the Supreme Court is fighting alone for its very legitimacy and authority.  Unfortunately, one need only look at history to see that appeasing tyrants is destined to fail.  Someday, the Supreme Court will have to reckon with its complicity in the dismantling of the rule of law and justice in our nation.

Here are my predictions for the future of American law and society:

  1. Privacy and reproductive rights will be severely restricted.
  2. We will see continued expansion of corporate first amendment rights which will be utilized to disempower and diminish the rights of workers and minorities.
  3. Efforts to reform the voting process, fix gerrymandering, and remove money politics will be blocked by the Court.
  4. The Court will chip away at civil rights and the Voting Rights Act.
  5. There will be an expansion of Presidential power due to the Court’s fear of and deference to Trump and the failure of our dysfunctional polarized highly partisan Congress to meaningfully address issues or crises facing the nation. In other words, the other branches of government will shrink and cede power to Trump moving us closer to totalitarian government.
  6. There will be decreased civil rights across the board for natural persons, while rights for business and corporate interests will expand.
  7. Roe vs Wade will be overturned.
  8. Consumer access to the courts will continue to be diminished and consumer protection statutes will likely be removed or greatly diminished either by Congress or invalidation by the Courts.
  9. Gun rights will continue to expand and efforts to impose reasonable gun-control measures will be blocked by the Court.
  10. Unless the Court stands up to limit Trump’s executive authority, it will eventually become a merely symbolic institution, lacking any real authority or input into American law,and the nation’s slide into totalitarian rule will be complete

GARDYLOO – “used in Edinburgh as a warning cry when it was customary to throw slops from the windows into the streets” 

No Farting In Bed and Other Unwritten Rules that Preserve Democracy

Much to my long-suffering wife’s disappointment, there is no law against a person farting in a bed occupied by two people.  However, as she is inclined to remind me, generalized unwritten rules of marital bliss dictate that one refrain from offensive emissions.  I value my wife and am quite content to stay married to her, so I do my best to treat her with respect and to restrain myself from breaking the norms of marital behavior.

The unwritten rules, norms, that govern and maintain peace in our lives often go unnoticed until broken.  For example, if I accidentally step on your toe as I pass you in a hallway, it is expected that I will say “excuse me” and offer a moment of attention and acknowledgement of your discomfort.  For your part, I don’t expect that you will sue me for battery as the result of an unintentional bump, although the law may well entertain such an action.  Instead, in most cases, my apology is sufficient.  We do this because it maintains the social fabric that allows our society to function despite the harms, insults, and embarrassments that we sometimes inflict upon each other. If either of us fails to play our part in the unwritten rules of our interaction, trust is broken and we are left with anger and feelings of being wronged.

Although I spend a lot time in conflict in my law practice, there are some unwritten rules that govern behavior between lawyers that make a big difference in preserving our sanity and our ability to civilly resolve our clients’ disputes.  First, contrary to what you may have seen on television, good lawyers don’t fight about unimportant things and we don’t insult each other.  If opposing counsel needs a few extra days to complete a response to a motion or lawsuit, it’s bad form to deny the request.  When opposing counsel makes a foolish mistake, a good lawyer will avoid humiliating him or her in front of their client.  Perhaps most importantly, we don’t lie to each other.  A lawyer who breaks these unwritten rules will soon find him or herself ostracized within the legal community and judges take a very dim view of such behavior.

Behavior norms and restraints are rapidly decaying in American government.  Harvard Political Science professors Steven Levitsky and Daniel Ziblatt in their recently published book How Democracies Die provide a detailed history and warn us that loss of democratic norms and restraints is historically associated with the collapse of democracy and the rise of  authoritarian rule.

A dysfunctional president, a bad Supreme Court Justice, or an indentured Congress might give us poor policy and temporarily strain the boundaries of our democracy, but they are unlikely to cause the demise of democracy or give rise to authoritarian rule. However, the loss of unwritten norms and restraints on our behavior towards one another increases the polarization in our society and in our government, which is measurably leading to the breakdown of democracy.

This is not a party issue or an issue of conservative versus liberal or of Democrat versus Republican. This is about whether we continue to exist as a democracy.  In the time that I’ve been writing this piece, the news has exploded with comments between two prominent politicians from different parties who are arguing about who would win a fist fight.  This type of rhetoric is ridiculous and is destroying us.  Playing “hardball” with a “the other side is the enemy who must be destroyed at all costs” mentality is what happens when democracies are failing.  We need to put a stop to calls to lock up political rivals and stop delegitimizing anyone outside our camp or who challenges an idea or tradition.  Such calls are a return to McCarthyism and have no place in our democracy.

American democracy is not going to be saved by our politicians, at least not as long as voters continue to mistake norm breaking, obstruction, and lack of restraint for vision, commitment, and leadership.  It is up to each of us to do what we can to reduce the polarization and to turn away from those who would have us depart from the unwritten norms and restraint that are foundational to functional democracy.  We have to say “enough” to the politics of obstructionism and delegitimization.  We have to reject the idea that our patriotism is measured by our political party affiliation, our religion, our skin color, our ideas of public policy, or even in what position we sing the national anthem.  I believe that true patriotism is measured by our commitment to each other and to the democratic norms and restraint that have historically allowed our nation to survive.  The choice is ours, we can continue to fart in the bed, enraging our partners until they reach the breaking point, or we can exercise some restraint and civil behavior and maintain the relationship.

Sexual Assault And Our Lack of Trust In Women

Is it simply a coincidence that the wave of women coming forward reporting sexual harassment and other inappropriate behavior comes approximately a year after a woman, Hillary Clinton, won the popular election to the office of President of the United States, but was denied that office by the electoral college?  I don’t think it is. I think that the election became a referendum on the status of women in our society and the outcome doesn’t flatter us.

We all witnessed the infamous video of Donald Trump bragging about sexually assaulting women and getting away with.  Perhaps more stunning was how so many people were able to disregard this video and justify their continued support of Trump on the basis that Hillary Clinton was so untrustworthy that no sin of Donald Trump would ever make him a worse choice than her.

This really became the theme of the Trump campaign and has been the stock and trade of many pundits such as Rush Limbaugh and Bill O’Reilly. I remember watching one of the debates in which Donald Trump repeatedly called into question Hillary Clinton’s honesty and trustworthiness utilizing a common technique of abusers called gas-lighting.  With gas-lighting, the abuser repeatedly states blatant lies as fact, often saying things like “people are saying”, “everyone knows you’re…” in order to sow seeds of doubt regarding the victim’s credibility.  It’s a brainwashing technique that has been used by abusers, dictators, and cult leaders and is alive and well in modern American politics.

Sadly, in my life, I have seen gas-lighting used most effectively by men against women.  I’ve witnessed it time and time again in nearly every setting where a man’s power is threatened by a woman.  What is even more surprising is how often women readily join in and support the gaslighting of another woman who dares to step out of line. We need to recognize gaslighting for the form of abuse that it is, but I don’t see any signs of that happening.

Our culture has a long tradition of not trusting women.  Most Americans who are religious practice one of the Abrahamic faiths in which the very first story in the Bible is the creation story where it’s Eve who first eats of the forbidden fruit and is often blamed for our expulsion from Eden (I would strongly argue that this is not a correct interpretation of this story, but I do think it is how a majority of people read the story).  Within the creation story we see G-d seeming to endorse an subservient position for Eve: “…your desire shall be for your man, and he shall rule over you.” This preference for the masculine is reinforced in Abrahamic religions in which G-d is usually referred to in the masculine form, and in many traditions women are excluded from portions of ritual life or considered disqualified to serve as clergy. The religious message isn’t simply that women are dishonest, but that they are impulsive and have poor judgment and that when a man allows a woman to lead, it will corrupt him.

In American history the institutionalized lack of trust in women is pervasive.  Women were denied the right to vote until 1920.  In many states, married women were legally considered incompetent to contract and their property belonged to their husbands. The law did not protect women from sexual assault by their husbands. These are not ancient laws that were abandoned long ago. Such laws have are within living memory and were in force for the majority of our nation’s existence. The Florida Supreme Court wrote, as recently as the 1940’s: “The common law as interpreted by this Court does not recognize capacity in a married woman to contract.” Hogan v. Supreme Camp of Am. Woodmen, 1 So. 2d 256, 258 (Fla. 1941).

We are a product of our history and old biases and ideas that often lurk in the deepest depths of even the most educated and progressive minds.  It’s not simply that we accept “boys will be boys”.  It’s that our society carries an inherent bias against the competency and trustworthiness of women that continues to be a strong force to this very day.  It’s why voters were so easily mislead regarding Hillary Clinton and why victims of sexual assault have felt often felt powerless.

Recall the Jameis Winston case, in which the woman who claims she was sexually assaulted immediately reported the incident, but the police failed to vigorously investigate the alleged crime despite the serious nature of the alleged offense.  It is worth noting that when the alleged rape was first reported, the woman didn’t know the name of her alleged attacker, so I see this as more than just the local police trying to cover up for an athlete. I think the unspoken truth in that case is that the police simply didn’t take her seriously, and, if the case hadn’t led to a star football player, we never would have heard another word about it.

Many of the women who have come forward have said that they didn’t speak up because they were afraid that people wouldn’t believe them or take their claims seriously.  Whenever a complaint of sexual misconduct is made, we need to take it seriously and ensure there is no retaliation against the person making the report.  I’m not one to say that women never make false allegations.  I’ve done enough criminal defense law to have long abandoned that idea, but I also know that we don’t question the victim’s credibility to such a degree when it’s a man complaining that he was hit by another man.  I also know that this bias isn’t limited to men.  One of the earliest lessons that I was taught by a very effective and experienced female criminal defense attorney was to choose as many women as possible when selecting a jury for a sexual assault case with an adult female victim. She told me, women are skeptical when another woman claims she’s been raped and they don’t feel the guilt that a male juror does.

Legal scholar and Harvard Law Professor, Alan Dershowitz, wrote: “The struggle for morality never stays won, it’s always in process”.  As our society has evolved we’ve often been shocked to see what injustices we’ve turned a blind eye to and that people who we’ve regarded as leaders have become the symbols of those injustices.  I think we have to remember that while evolution can be a slow process, there also times when rapid changes occur.  I hope that this is one of those times and that we emerge as better and wiser people.

American Law – A System of Justice or Oppression?

Is justice being erased in the United States?

The American legal system is in grave danger of becoming a system of oppression used by the powerful against the weak.  When our courts are no longer accessible by the average person, when there is no mechanism for payment of lawyers who enforce the rights of those without economic or political power, when funds to legal services programs are cut or abolished, when laws are written that increase the procedural burdens and burdens of proof required when the average person challenges the wealthy and powerful, when the right to trial by jury is consistently nullified by boilerplate contract language, when judges are increasingly selected for their ideology and political alliance rather than their jurisprudence and temperament, when the legislature and corporate-drawn contracts of adhesion take away the right of the average person to use our courts, when the legislature passes laws prohibiting working-class people from bringing their often modest claims as a class-action lawsuits in our courts and forces them into expensive individual arbitrations, when the legislative and executive branches of our government seek oversight of our courts and underfund our courts to a degree that renders them incapable of performing their function in our democracy, you no longer have a system of justice, but a system of oppression wherein the law is used as a weapon against the weak.

Sadly, I see all of these things happening at ever-accelerating rate, based upon a fictional claim that the system is broken and over-run with frivolous claims by greedy consumers and their lawyers.  If one looks at how our civil ccourts are actually utilized, the falsehood of these claims becomes readily apparent.  Consider that, for the week of March 3 – 12, 2017, there were 126 civil cases filed in the Leon County Florida Civil Courts. Here is the breakdown of those cases by type:

Case type                                                              Number Filed
Auto Accident                                                                  6
Debt Collection                                                               60
Residential Foreclosure                                                10
Premises Negligence                                                      1
Medical Malpractice                                                       1
Discrimination                                                                4
Products Liability                                                           1
Inmate lawsuit                                                                6
Residential Eviction                                                      20
Misc Other                                                                       9

Of the cases filed last week listed above, 48 were filed in small claims court, which is supposed to be “the people’s court” due to relaxed pleading standards deigned to allow a less formal process than Courts that deal with higher dollar or more complex cases.  Sadly, small claims courts are increasingly the place where the wealthy and powerful bring cases filed by their lawyers against poor people who in the vast majority of cases have no access to lawyers.  Of those 48 small claims cases filed last week in my local courts, 40 of those lawsuits were not claims brought by individuals, but were filed by companies who purchase defaulted debt, usually credit card debt, and were suing individuals and families.  Most interesting, of those 40 cases, 20 were filed by a single company, Midland Funding, a company who has never once been willing to go to trial in any of the cases where I’ve appeared on behalf of a consumer who they were suing.  Unfortunately, most consumers are not able to secure representation by a lawyer and so they either settle or the court enters a default judgment when the consumer fails to show up for court.

Politicians, supported by corporate donations, are quick to raise a cry of alarm that we are experiencing an epidemic of lawsuits. They say tort lawsuits are out of control, but is this claim in any way reflected in the numbers we find above?  Do we really need to limit medical malpractice lawsuits when they constitute less than one percent of all the lawsuits filed? Why do debt collection lawsuits, evictions, and foreclosures constitute 75 percent of our civil cases? Where is the epidemic really? Where is reform really needed?

I fear that justice is about to become much more elusive in our legal system. There are a number of new laws being considered at both the federal and state levels that will only increase the one-sided nature of our legal system.  Most alarming to me is the current federal legislation entitled “Fairness in Class Action Litigation Act” that is purposefully designed to kill class action lawsuits. The American Bar Association and a large number of consumer rights groups have issued statements opposing the law. Consumer claims are often unfeasible when brought individually due to the small amounts of damages that often represent huge profits for the dishonest business when spread over thousands of customers.  I understand that some people either don’t understand or are philosophically opposed to class action lawsuits, but no other mechanism is as important or as potent for maintaining integrity in our marketplace as the class action lawsuit.    Class action lawsuits are going to be even more important in an era of reduced government oversight as we see the disappearance of important consumer protection laws such as Dodd-Frank, and the restraint, if not outright elimination, of administrative watchdogs such as the Consumer Financial Protection Bureau, Environmental Protection Agency, Food and Drug Administration, and the Federal Trade Commission.

Another misguided bill is the “Lawsuit Abuse Reduction Act” which is aimed at lawyers representing individuals and families, and would require federal judges to impose sanctions in the form of costs and attorney fees against lawyers who file lawsuits that are deemed “frivolous” by the court.  Such a law would have a chilling effect upon the development of new legal theories or reinterpretation of the law.  It’s also notable that this law would not impose any risk for the lawyers on the other side who raise frivolous defenses.

Lastly, and I admit self-interest here, we are quickly reaching a point where lawyers like me who seek to protect the rights of individuals and families are going to be unable to continue our work. Ending class-actions, capping attorney fees, forced arbitration, complex and onerous pre-suit notice requirements, under-funded courts that charge excessive filing fees, making consumer lawyers vulnerable to one-sided sanctions, and the repeal of consumer protection laws will effectively put me, and many of my colleagues, out of business.  I know there are some who will celebrate getting rid of lawyers with a cheer of “kill all the lawyers”, ignorant of the roots of that statement and what an America without lawyers representing individuals and families will look like.  As for me, it’s a frightening future, one devoid of real opportunities for justice, where the masses live their lives subject to the whims and will of their corporate overlords.  We will no longer have a justice system; our legal system will be nothing more than a system that maintains the current power relationships in our society.  It will be a system of oppression.

You Shall Not Oppress The Stranger: My Call for Respect and Dignity for Transgendered People

I don’t know what it’s like to be a transgendered person.  I’ve always felt that my body and gender are one and the same and simply who I am.  That’s not true for everyone, which I think some people view as suspect since they’ve never experienced a disconnect between their body and gender.

I’m certainly no expert on this subject.  When the terms cis-male came up in a recent conversation I had to ask one of my friends what that meant (a cis-male is a non-transgendered male). However, I have encountered a few transgendered people and I’ve gotten some glimpses into their lives that have shaped my thoughts.

My first memory of encountering a transgendered person was almost 20 years ago when I was working nights as an Emergency Room volunteer at Tallahassee Memorial Hospital.  A biological male dressed in women’s clothing was brought in after having been physically attacked when leaving a bar.  The beating was vicious.  The police brought him in, but it was clear to me that they had no interest in finding the people who attacked this person. I remember one of the nurses making a derogatory statement about how he should have expected the beating. I remember that when the man was discharged, nobody offered him fresh clothes and nobody came to pick him up and carry him home.  He was left to walk out through the waiting room with his bandaged face and wearing the blood stained and torn dress he’d been wearing when attacked.

A short time later, a woman who was transitioning to being male came to work at the computer center where I worked during the evenings while I was in school. The way I understood the story, he was a state employee who worked as a computer programmer.  None of the state agencies wanted him and our director had offered him a position.  He wasn’t allowed to work in the cube farm with the other programmers, but was kept isolated in a small windowless former storage room.

My next encounter with a transgendered person was when I represented a young effeminate black teenager who had been expelled from the Leon County school system after getting into a conflict with his school principal over his wearing skirts to school. The young man was in foster care, living in a group home, because his mother wouldn’t stop beating him with a belt in order to stop him from being such a sissy.

When people discuss the rights and protections of transgendered people, I think of the transgendered people I’ve known, the difficulties they’ve faced, and the harms they’ve suffered.  As a result, I am absolutely certain in the moral righteousness of providing whatever legal protections are necessary to allow transgendered people to live their lives with dignity and without fear of harm or persecution.  The bathroom issue gets no traction with me.  To limit someone’s bathroom choice based upon their birth gender, rather than the gender in which they live their life, is not rooted in protection for anyone, but in a denial of the reality of transgender issues and the hardships transgendered people face.  Simply put, it’s rooted in ignorance and xenophobia.

Throughout history people have attacked those who live outside the mainstream. Those who are different are so often used as the scapegoats upon which society focuses its fears and prejudices.  Transgendered people are the proverbial strangers in the mainstream where most of us exist, which makes it sadly ironic that so many who seek to oppress and reject them claim to be religious people. Repeatedly, the Bible tells its readers not to oppress the stranger, but to protect the stranger.  Not oppressing the stranger is the most repeated Biblical commandment. It is the central message of Western religious thought. Refusing someone the right to use the bathroom consistent with their identity is oppression, even more so when one is talking about school children.  Sadly, those who hold power in the United States today have missed this fundamental lesson of religious and historical morality and are using their power to incite hatred and abuse upon the most vulnerable members of our society.

 

Happiness in An Unhappy Profession

Associate Attorney is the Most Unhappy Occupation

I’m a happy person working in a profession that includes what some have called the most unhappy job in America.  According to an article published on the Above The Law legal blog, the most unhappy job in America is associate attorney.  To be fair, I’m not now, nor have I ever been, an associate attorney.  An associate attorney is a lawyer who works in a law firm as an employee.  The closest I’ve ever come is the almost two years I spent working as an assistant public defender immediately after law school. I loved the Public Defender’s Office.  The work was intense, I was in court every single day, and my co-workers were great.

I really love being a lawyer despite what the researchers say.  Sure, it’s a lot of difficult hard work. Being a self-employed lawyer is risky with lots of ups and downs.  Sometimes it’s heartbreaking because I don’t always win and I argue from the heart.  It always hurts when a judge or a jury rejects an argument that I’ve spent days researching and crafting. I’ve had to learn to pick myself up, shake off the damage, and keep going.

I’m not wealthy, and my income is very modest compared to most lawyers, but I don’t feel at all impoverished. Instead, I feel incredibly fortunate.  I get to work at home a lot where I sit at my desk in shorts and a comfortable shirt with my dog at my feet and my cat occasionally interrupting me with a jog across my keyboard.  I get to work with my wife, who challenges and supports me in every way.  I chose my clients and the cases on which I want to work.   I have complete control over the tools I use from the pens we buy for the office to the software we use.  I even get to choose my working hours and I can take off as much time off as I’d like and can afford.

I don’t really understand being unhappy as a lawyer because I find what we do to be so incredibly interesting.  Legal cases are stories, often imperfect, always fascinating, and always teaching us something about ourselves and the world in which we live.   When I step into a courtroom on behalf of a client, I am privileged to tell my client’s story.  Each case gives me an opportunity to change someone’s life, and sometimes I can even change the rules by which we all play.  I’ve gotten to stand next to people who came to me feeling that no one was listening or cared and I’ve shown my clients that they have a voice and are worthy of respect.  Sometimes I can even persuade people to care about someone they’d overlooked.  My arguments don’t always work, but sometimes, when I’m in the right court, with the right facts, and the right argument, I get to change the world.  To do that once in your life is amazing, but to get the opportunity to do that every single day, is a priceless gift to me.

Public Interest Lawyers Work Hard, But Have the Highest Happiness Rankings

According to the New York Times, another study indicates that the happiest lawyers are public interest lawyers, those at the lowest end of the lawyer pay scale. Public interest lawyers make only a fraction of the earnings of firm associates, and are paupers compared to firm partners, but they’re the happiest of all lawyers.  Clearly, more money isn’t the key. The article speculates that the reason for this difference in happiness is:

The problem with the more prestigious jobs, said Mr. Krieger, is that they do not provide feelings of competence, autonomy or connection to others — three pillars of self-determination theory, the psychological model of human happiness on which the study was based. Public-service jobs do.”

I think there is truth to this speculation. I love the opportunities for self-determination and autonomy that my work provides.  Most valuable of all to me is the connection my work creates for me with my clients, other lawyers, the judges before whom I practice, and the community in which I live.

I didn’t consciously chose the pathway to happiness when I started my legal career.  My life is really a product of happy circumstance combined with what I often see as a somewhat selfish tendency to choose experience over monetary benefit.  I would rather scrape by in a job that I feel makes a difference, than do unfulfilling work that pays a lot of money.  I am also aware that I’m very fortunate because I get to make that choice. So far, I’m happy with the outcome, so I guess I’ll just keep on doing what I’ve been doing.

 

 

A Flawed Democracy

We’re in jeopardy of losing our democracy.  This past week the Democracy Index, an international ranking of the health of democracy in world’s nations,  downgraded the United States from a “Democracy” to a “Flawed Democracy”.  University researchers recently concluded in a study that the United States is an oligarchy, that is we’re dominated by the rich and the average person lacks meaningful political power. Despite all of our pledges, flag waving, verbal accolades regarding the wonders of democracy, and declarations of defending freedom to the death, American democracy is on the ropes.  No, Donald Trump is not the cause.  He may be a symptom, but there is plenty of reason to be concerned about American democracy apart from Donald Trump’s authoritarian fascism.

Our government is a system of checks and balances between the three branches: the judiciary, the legislative, and the executive.  In theory, no branch is greater than the other and each operates to keep the other in check.  Only the legislative branch is subject to direct election on the federal level, although on a state level both the judiciary and the executive may also be directly elected.  The federal judiciary is insulated from the electoral process by virtue of lifetime appointment of federal judges by the Executive and confirmation by the legislative branches.

However, recent years have witnessed an accelerating decline of this system of checks and balances. Instead, we are witnessing the rise of what I call the “super legislature”.  Certainly, there has been a lot of scrutiny paid to the use of Executive Orders by the President in the face of congressional gridlock, but if you pay attention to what’s happening at the state level, and then look back at the federal level, you’ll see that it’s not the presidency with which we need to be concerned. It’s the legislative branch, which have become increasingly single party nationally and whose members dominated by big money, where we see the most blatant attempts to overturn our system of checks and balances.

For example, according to the Florida Bar News, there is currently a bill in the Florida legislature, introduced by Republican Julio Gonzalez, to amend the Florida Constitution to allow the Florida legislature to overturn any Florida Supreme Court decision that rules any law to be unconstitutional.  This bill, should it become law, would remove the Florida Supreme Court from its traditional role of having the final say regarding the Constitutionality of our laws.  In other words, the legislature, not the Courts, would get to review the constitutionality of the laws it passes.

In North Carolina, the Republican dominated legislature recently passed laws severely restricting the power of the Governor following the election of a Democrat to that office.  Fortunately, this law was struck down by the Courts. However, I suspect that the North Carolina legislature will engage in a war of obstruction, similar to what President Obama experienced, designed to thwart the will of the voters by making it impossible for the Governor to effectively govern.

On the Federal level we have witnessed years of obstruction culminating in the absolute refusal of Republican Senators to hold a hearing on President Obama’s nominee to the United States Supreme Court. This refusal was not based upon an objection to the nominee, but as a mechanism to prevent the President from performing his duties.

I see this happening in other areas too.  For example, through binding consumer arbitration clauses, the legislature has removed jurisdiction from our courts for the majority of claims arising from consumer transactions with banks, credit card companies, car dealerships, employment contracts, etc.  The profound impact of this was recently seen when the lawsuits of consumers who were defrauded by fake accounts created by Wells Fargo found themselves unable to sue due to arbitration clauses in their account contracts and a federal statute called the Federal Arbitration Act.

I suspect that underlying all of this is a fundamental nationwide deficit of civics education.  According to a study by the Annenberg Public Policy Center, only 36% of Americans can name all three branches of our government.  This lack of even the most basic civics education and understanding leaves voters vulnerable to misinformation during elections and campaigns such as when an ad claims that a presidential candidate is going to raise or lower taxes. (Taxing and spending is controlled by Congress).  Indeed, it often appears to me that most voters ignore candidates for all offices except president, whom they seem to believe is some sort of temporary all-powerful king.

I don’t know how to solve this problem.  It’s always seemed to me that patriotism should demand more than flag waving. It should demand that we educate ourselves and our children regarding the structure of our government, the people we elect, and the work in which our politicians and bureaucrats are engaged.  True patriotism should demand more than claim that all politicians are crooks, because they’re not.  I ran for office a few years ago and it was an eye-opening experience. While I did not agree with the ideas of some of the candidates, I found the majority to be decent people who were interested in the issues and improving the lives of citizens.   Money in politics is certainly a problem, but voter ignorance and apathy is an even bigger problem.  Additionally, partisan voters, who have given over their minds in exchange for allegiance to a political party that they follow like lemmings, make campaigning based upon ideas extremely difficult, because so many minds are absolutely closed and people vote blindly according to party.

In closing, I want to say that whatever the problems we have in our system of government, we need to be careful and to stay true to democratic principles above all else.  If we’re not careful, we can lose this democracy, and I believe that what comes next will be most unpleasant.