Public and Private Law

July 11, 2020

by Steve Stofka

A recent Tik-Tok video shows a woman berating some unseen worker at a dental office. The problem? The woman is not wearing a mask and is not allowed past the reception desk for her appointment. She claims to know the law and is going to sue them. She does have intimate knowledge of a private law that she carries around in her head. She is Queen of her own private island. Public law and the courts disagree with her, but many of us live by two laws – the public and the private.

This is a good jumping off point for a discussion on the freedoms of private businesses. In 1960, in Greensboro North Carolina, four black university students staged a sit-in at a Woolworth’s 5&10c store which would not serve them at the lunch counter. Woolworth was well within their rights at this time. It was the southern way.

Over the next few weeks, the number of people grew and attracted national attention, including President Eisenhower. White residents staged a counter protest which turned violent. Boycotts of other stores began and caused substantial sales losses to Woolworth. A few months later, Woolworth desegregated their lunch counters. Discrimination in places that served the public was made illegal with the passage of the Civil Rights Act four years later.

Generally, a business has the freedom to screen their customers based on a criteria that applies to everyone. Restaurants often post “No shoes, no shirt, no service,” and may add “no mask” to that list. Inebriated customers at beach communities sometimes protest about the “no shirt” provision. This is America, man. I have my rights! The bouncer ushers the customer out the door or the proprietor calls the police.

We understand that religious communities have a set of laws different from civil law. People who object to a woman’s right to an abortion may do so based on a 19th century papal proclamation that life began at conception (McGarry, 2013). That papal bull overturned centuries of Catholic teaching.

At a campsite near Lake City, Florida, I was first introduced to an alternate interpretation of civil law, but one based on a historical, not religious, foundation. Following the Civil War, the 13th, 14th and 15th amendments were passed over the objections of many southerners who felt that the North was an occupier in their land (Foner, 2020). These amendments had been forced on the southern states. Within a decade, southern states passed Jim Crow laws that undid much of the three amendments.

Under this interpretation, I was informed, Supreme Court decisions based on these coercive amendments were “illegal and void” under the exclusionary rule. This included the court’s 1954 ruling that desegregated public schools and the Roe v. Wade decision that invalidated state laws that prohibited abortion. Crazy talk? The exclusionary rule relates to the admissibility of evidence, not the validity of court decisions (Web Solutions, n.d.). That private interpretation of the law certainly guides the actions and attitudes of too many.

The 1968 Fair Housing Act hoped to end many decades of housing discrimination in state and federal law. Instead, it pushed the discrimination underground (McGhee, 2018). A real estate agent might be hesitant to show a house to a black couple in a white neighborhood. She wants to get referrals from neighbors or other agents, who might wonder: Can she not navigate the subtle dynamics of filtering out less optimum clients? Keep silent. Two laws – public and private.

As discussed last week, all states require people to wear seat belts. The NHTSA reports that almost half of those killed a few years ago were not wearing seat belts (NHTSA, n.d.). But what about the law of personal freedom? It is written in the Constitution, man! I have my rights! Life, liberty and the pursuit of happiness. The phrase is a declaration of intent and sentiment found in the Declaration of Independence, not the Constitution. It has no force of public law but is the cornerstone of private law.

There are laws against dumping but many contractors will dispose of remodel trash in dumpsters to save the time and expense of driving to the city dump. According to a contractor’s private interpretation of the law, it’s not really dumping because the debris is going into a container. Private law vs. public law.

Let’s now revisit the woman in the video who yelled at the worker in the dentist’s office. Under contract law or maybe it is appointment law, she made an appointment with the dentist and she showed up on time so the dentist has to see her. Those are the only facts that matter. Aren’t we all angry when other people do not recognize the same private laws that we carry around in our heads? Does someone else have the same personal freedom that I do – to form a private interpretation of the Constitution? Well, of course. But if they are wrong, then no they don’t, man. That’s in my private Constitution.

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Notes:

Photo by Thomas Kelley on Unsplash

Foner, E. (2020, April 03). Reconstruction. Retrieved July 11, 2020, from https://www.britannica.com/event/Reconstruction-United-States-history

McGarry, P. (2013, July 01). Catholic Church teaching on abortion dates from 1869. Irish Times. Retrieved July 11, 2020, from https://www.irishtimes.com/news/social-affairs/religion-and-beliefs/catholic-church-teaching-on-abortion-dates-from-1869-1.1449517

McGhee, F. (2018, December 04). The Most Important Housing Law Passed in 1968 Wasn’t the Fair Housing Act. Retrieved July 11, 2020, from https://shelterforce.org/2018/09/05/the-most-important-housing-law-passed-in-1968-wasnt-the-fair-housing-act/

NHTSA. (2020, January 15). Seat Belts. Retrieved July 11, 2020, from https://www.nhtsa.gov/risky-driving/seat-belts

Web Solutions. (n.d.). Search and Seizure – The Exclusionary Rule And The Fruit Of The Poisonous Tree Doctrine. Retrieved July 11, 2020, from https://law.jrank.org/pages/10054/Search-Seizure-Exclusionary-Rule-Fruit-Poisonous-Tree-Doctrine.html.

Wikipedia. (2020, June 15). Greensboro sit-ins. Retrieved July 12, 2020, from https://en.wikipedia.org/wiki/Greensboro_sit-ins

Photo by Scott Graham on Unsplash

The Social Contract

July 5, 2020

by Steve Stofka

Am I my brother’s – or sister’s – keeper? If I am, what is the extent of that care and concern? We’ve been discussing this issue for a few thousand years, and this pandemic brings several issues to a sharp focus. On this Independence weekend, how independent are we? How do we view the social contract?

Writing in the 1840s, Ralph Waldo Emerson distinguished between “direct” and “reflex” recognition of duties (Emerson, 1841). A direct type is one based on principles that we respect and embrace. A reflex type is one we recognize simply because others hold it as a duty. The second type is like wearing an uncomfortable style of shoe because it is a popular style. Who decides what my duties are?

There was a video of Florida protesters chanting, “My body, my choice.” Sound familiar? No, it wasn’t a pro-choice rally. It was a protest of the governor’s requirement that people wear masks. Is my freedom more important that your health? Let’s say that it is. It’s a soccer match and the team “My Freedom” with green uniforms beats the team “Your Health” in blue uniforms. Should choices about priorities be a dualistic – win or lose – debate? We are often forced to make such choices when we vote.

This past week two women in their twenties walked out of a clothing store. One hurriedly took off her mask and said, “God, I can’t stand these things.” Her friend was calm and kept her mask on as they walked to their car. Some people may protest “My Freedom” when it’s just a matter of being uncomfortable. Chanting “My Freedom” sounds like a principle. It’s noble. Chanting “My Comfort” sounds like an 18-year old who wants to wear sandals and surfer shorts to a job interview.

Most hospital employees who have contact with patients must wear masks or they are fired. Businesses serving the public may require that their employees wear masks as well. So why the objection to being told to wear a mask at the park or beach? Several decades ago, many people had this same debate about seat belts and being forced to wear helmets while operating a motorcycle. Does the government have a right to require people to wear safety equipment?

NO) It’s my body and I have a right to not wear a seat belt or a helmet.
YES) We don’t have a constitutional right to drive. It is a state-issued license.

In 1972, the Supreme Court settled the legal question, concurring with many state Supreme Courts that people did not have a constitutional right to drive a vehicle (Jones & Bayer, 2007). The case was about helmet laws for motorcycle drivers but the decision threatened car manufacturers who did not want to be forced to install seat belts in cars. Federal legislation was passed that exempted states who wanted to repeal helmet laws. Three states still don’t have helmet laws. Despite more than a decade of legal battles and lobbying, Congress passed legislation that required seat belts to be installed in new vehicles (Wolinsky, 1985).

What is a license and what is a right guaranteed by the Constitution? In 2012, the Supreme Court heard a legal challenge to the ACA, or Obamacare. Does the government have a right to require a person to buy health insurance?

YES) The government requires that people buy auto insurance. Same thing.
NO) Health insurance is our health, the act of simply being alive. That is a right protected by the Constitution. The government cannot require you to buy health insurance.

In 2012, the Supreme Court agreed with the No argument. “The federal government does not have the power to order people to buy health insurance,” Chief Justice Roberts wrote (Norman, 2012). However, the government can charge a person a tax for not buying health insurance. The penalty was a tax. With that understanding, Obamacare was allowed to stand.

Wearing a seat belt or motorcycle helmet protects us. Wearing a mask protects others. Don’t we have a duty to others in our community? Isn’t that part of the implied social contract? This debate is similar to the one about vaccines, especially those given for childhood diseases. Getting a vaccine helps protect others. Can a public school require my child to be vaccinated?

The Yang Gang is a group of supporters named after former Presidential candidate Andrew Yang. He proposed a Universal Basic Income program that would send money to most households every month. The program recognizes human dignity and provides a minimum threshold of financial support. Members of the Yang Gang recognize a broad social contract that includes a duty to help support others. Their motto is “not left or right, but forward.”

Some recognize two forms of the social contract. The first is an involuntary participation in society that is regulated by a coercive government. This is the reflexive form of duty that Emerson wrote about. We accept the rules, duties and principles even if we don’t agree with them. We make a bargain to ensure some security of our freedom and property. The second type of social contract is voluntary, or at least non-coercive, akin to what Emerson called a direct duty. This includes our family, our church, civic groups and the people we mingle with.

We feel strongly about our opinions, and weigh the various aspects of an issue differently. Emerson thought each person’s synthesis of experience was unique and that each of us formed “a new classification” of the world. A democracy requires consensus. In a nation that prides itself on its independence, we have chosen a form of government that makes us dependent on each other to create the rules for our society. On July 4th , we declared our independence from Britain, and our in-dependence on each other.

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Photo by Scott Graham on Unsplash

Emerson, R. W. (1841). On Self-Reliance. American Transcendentalism Web. Retrieved July 04, 2020, from https://archive.vcu.edu/english/engweb/transcendentalism/authors/emerson/essays/selfreliance.html

Jones, M., & Bayer, R. (2007, February). Paternalism and its discontents: Motorcycle helmet laws, libertarian values, and public health. Retrieved July 04, 2020, from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1781413/

Norman, J. (2012). Supreme Court Upholds Health Care Law in 5-4 Decision. Retrieved July 04, 2020, from https://www.commonwealthfund.org/publications/newsletter-article/supreme-court-upholds-health-care-law-5-4-decision

Wolinsky, L. (1985, February 19). Big Lobbies Clash in Fight on Seat Belts : Hearings Open Today as California Joins Auto Safety Debate. Los Angeles Times. Retrieved July 04, 2020, from https://www.latimes.com/archives/la-xpm-1985-02-19-mn-546-story.html.

Rational or Reasonable Police

June 28, 2020

by Steve Stofka

Last week Senate Democrats blocked a Republican sponsored policing bill that did not go far enough. This week House Democrats proposed a bill that Republicans said went too far. A divided Congress where nothing gets accomplished but many fine speeches are made. Giving a microphone to a politician is like giving a lollipop to a young child.

Libertarians prefer a divided Congress. Aren’t there enough rules already? Each year, the Supreme Court decides on the different interpretations of more than hundred laws that are already on the books. They turn down thousands more cases (U.S. Courts, n.d.). Voters send their elected representatives to Washington to write laws. Even in a divided Congress, a few hundred bills pass both houses of Congress and become law. The media attention often focuses on those bills that are blocked by either chamber (U.S. Congress, n.d.). Policing laws…hold onto that thread for a minute.

Apple TV has announced the 2021 release of Isaac Asimov’s groundbreaking Foundation Series (Apple, 2020). Mr. Asimov is also known for his imaginative stories about robots. He invented the 3 laws of robotics, and his stories explore the contradictions and complexities of writing rules, or algorithms for robot behavior (Anderson, 2019).

Pick up the policing laws thread again. What rule for supervising police behavior might Asimov suggest? In a situation under review, ask this question: would a highly  sophisticated robot cop behave in such a manner? A quick refresher on the 3 laws: 1) don’t cause or allow harm to humans; 2) obey humans unless that conflicts with the first law; 3) a robot’s self-preservation unless that comes into conflict with the first two laws.

Let’s look at the George Floyd case (Hill, 2020), and begin with a consideration of possible violations of Law #1. Did the officer cause harm to George Floyd, a human being? Yes. But wait, there’s possible rule conflict here and this is the subject of some of Asimov’s stories. A robot might have to cause harm to a human being to stop that human being from causing even greater harm to another human being. So let’s ask. Did George Floyd cause harm to another human being at this time? No. Was he likely to cause harm, given that he was handcuffed and several officers were surrounding him? No.

On to Law #2: When George Floyd repeatedly said “I can’t breathe,” did the officer respond by adjusting his position so that Mr. Floyd could breathe? No. A violation of Law #2.

Law #3: Self-preservation. Was the officer in imminent danger of destruction? No.

If the officer were a robot, his behavior would have been in violation of the laws. His positronic brain would have been replaced and later analyzed to understand the circuitry malfunction.

The laws and many of Asimov’s works explore the tensions and interpretations of several foundational philosophers: the universal rule-making of Immanuel Kant; the utilitarian and consequentialist principles of Jeremy Bentham; and the virtue ethics of Aristotle. Could R. Daneel Olivaw, the robot detective found in many of Asimov’s novels, practice virtue (Fandom, n.d.)? Yes, if a robot’s behavior is indistinguishable from that of a human being who acts with virtue.  

Like the behavior of Asimov’s robots, most of our laws are guided by the principles stated by Aristotle, Bentham and Kant. Our courts and juries judge human beings based on those laws. Police officers are not expected to act rationally like a robot, but like a reasonable person whose actions can be justified in the circumstances (Gardner, 2019). The reasonable person standard is a fictional person just as Daneel Olivaw is a fictional robot. Our legal institutions have difficulty defining and employing a consistent reasonable person standard.

Programmers would have as much difficulty coding mostly-rational-but-sometimes-erratic-but-understandably-so algorithms. Our cells behave like those algorithms – rational most of the time and cancerous when they become erratic.

In the far distant future, if we have robots policing our communities, we will have problems similar to our current concerns. Supervising the legal use of force has troubled many human societies and technology will not solve that persistent problem. Some robots will have defective positronic brains and commit acts of violence in violation of their programming. We’ll argue over the rules for robots and how to write them – at least I hope so. I hope that there is a Congress or some other deliberative body that argues over policing tactics as the House and Senate did these past two weeks. I worry when we stop arguing. That’s when the guns start arguing.

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Notes:

Photo by Franck V. on Unsplash

Anderson, M. R. (2019, November 11). After 75 years, Isaac Asimov’s Three Laws of Robotics need updating. Retrieved June 25, 2020, from https://theconversation.com/after-75-years-isaac-asimovs-three-laws-of-robotics-need-updating-74501

Apple. (2021, April 01). Foundation on Apple TV+. Retrieved June 26, 2020, from https://tv.apple.com/us/show/foundation/umc.cmc.5983fipzqbicvrve6jdfep4x3?at=1000lDR

Fandom. (n.d.). R. Daneel Olivaw. Retrieved June 26, 2020, from https://asimov.fandom.com/wiki/R._Daneel_Olivaw

Gardner, J. (2019). The Many Faces of the Reasonable Person. Torts and Other Wrongs, 271-303. doi:10.1093/oso/9780198852940.003.0009

Hill, E., etal. (2020, June 01). 8 Minutes and 46 Seconds: How George Floyd Was Killed in Police Custody. NY Times. Retrieved June 26, 2020, from https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html

U.S. Congress. (n.d.). Public Laws. Retrieved June 26, 2020, from https://www.congress.gov/public-laws/116th-congress

U.S. Courts. (n.d.). Supreme Court Procedures. Retrieved June 26, 2020, from https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1

The Underdog and the Elite

June 21, 2020

by Steve Stofka

Americans love the underdog. American colonists were the underdogs, weren’t they? Black people have been the actual underdogs but white people didn’t like to be thought of as topdog overlords. Aggrieved white slave owners advertised in the newspaper when a slave ran away. They paid good money for that slave, darn it. The slave owner was the victim!

How did a real estate billionaire become the leader of an underdog cult of white people? He is a populist who claims persecution, a key component of being an underdog. Who is persecuting the president? The IRS, for one. From his golden tower on 5th Avenue, he has endured constant audit and can’t release his tax returns.

He is persecuted by the media. Yes, the same media that gave him thousands of hours of free publicity during the 2016 campaign. They handed him a megaphone because they thought he was a buffoon in a political side show. Hillary Clinton would win, of course, but she was boring. A policy wonk. Check out Trump. He’s always been a nut. CNN’s ratings went up when Mr. Trump was on. Follow the ratings. More Trump.

Mr. Trump was the ringmaster, the P.T. Barnum of the political circus. He employed his limited vocabulary effectively when he spoke to his cult. Social media had become the carnival barkers of America’s political circus. He understood that and welcomed the publicity. He is fond of conspiracy theories because they attract attention like Barnum’s two-headed Queen from the Amazonian jungle. Conspiracies heighten the sense of persecution and validate his status as the leader of the underdog cult.

Tim Scott is a Republican Senator from S. Carolina. In an interview with the Wall St. Journal this week, he criticized a Democratic Senator, Dick Durbin, for characterizing the proposed Justice Act as “token, halfhearted legislation” (C-Span, 2020). Mr. Scott is black, one of the few black Republican Senators in the past 150 years. Mr. Durbin characterized the legislation as token, not Mr. Scott, but he later apologized. The legislation is a federal effort to impose some constraints on the police and Durbin did not think it went far enough.

In the interview with the WSJ, Mr. Scott thought the word was used intentionally to slight him and he referred to Mr. Durbin as an “elite liberal.” Thus Mr. Scott played to his voters and claimed underdog status. The entire Senate is composed of the wealthy and the powerful, a liberal and conservative elite. Why do grown men in positions of power behave like middle-graders? Why do our political institutions attract people who repeatedly demonstrate an arrested emotional development?

This weekend in Tulsa, President Trump will cover up his east coast eliteness with an underdog costume, stand before members of the underdog cult and speak of his persecution by the institutions of America, by the media, by the Democrats, and by [fill in the blank]. He has claimed to be blameless before God and needs no forgiveness (Scott, 2015). He is Job of the Bible. Is God also on the list of Mr. Trump’s persecutors? Did God send this pandemic to humiliate him?

When a white mob burned down a black community in Tulsa a hundred years ago, they were angry at the success of the black businesses and community, dubbed Black Wall Street. The blacks were taking business and jobs away from whites during the severe recession of 1921. Capitalism be damned. The white community felt it could not honestly compete with black people.  That is the underlying truth of racism in this country. Some white people worry that, if blacks were not kept down by discriminatory housing, education and employment practices, whites could not compete with them.

The cult has chosen as their leader a man who is a poster boy of the elite, the paragon of immaturity. He wants A on Monday and non-A on Tuesday. No, he doesn’t want to read his daily Presidential briefing. Don’t bother him about world affairs; he needs to watch the TV and see what people are saying about him. How are his re-election chances? Everyone is against him. Poor little him, the persecuted rich billionaire.

Mr. Trump has already ordered the U.S. Army to stand ready in Washington, D.C. and has threatened other cities that he will take harsh measures with protesters if the mayors of some cities will not. In 1989 the Chinese Communist Party sent tanks to confront and destroy demonstrators in Tiananmen Square in Beijing. The soldiers killed an estimated 10,000 people (BBC, 2017). Would Mr. Trump do the same? Would military leaders follow his order? That much is not certain. Without a doubt, he would claim that the protesters had forced his hand. He is the underdog. He is blameless before God and needs no forgiveness. He’s a good dog.

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Notes:

Photo by Chase Fade on Unsplash

BBC. (2017, December 23). Tiananmen Square protest death toll ‘was 10,000’. Retrieved June 20, 2020, from https://www.bbc.com/news/world-asia-china-42465516

C-Span. (2020, June 17). Senator Tim Scott on Police Reform. Retrieved from https://www.c-span.org/video/?473151-9%2Fsenator-tim-scott-police-reform

Scott, E. (2015, July 19). Trump believes in God, but hasn’t sought forgiveness – CNNPolitics. Retrieved June 20, 2020, from https://www.cnn.com/2015/07/18/politics/trump-has-never-sought-forgiveness/index.html

Obligations

June 14, 2020

by Steve Stofka

Here’s a question that comes up in our public discourse. What obligation does Jeff Bezos, CEO of Amazon, have to the workers at the company? Amazon is a public company as well. What about the obligation to shareholders of the company’s stock? What obligation does Mr. Bezos have to the personal capital – money, knowledge, time and risk – that he has invested in the company?

Mr. Bezos is one of a number of people who have helped engineer an extraordinary transition into today’s digital age. Bill Gates, the founder of Microsoft, is another example familiar to readers. Both men have donated billions of their wealth to charity and public causes, including health care and climate change.

Each month these titans of technology implicitly send many of us a dividend check. We receive the dividend whether we own Amazon or Microsoft stock. The dividend is not included in government survey data because it is hard to quantify. The dividend is our time and time is money.

To understand this analysis, let’s step into an alternate reality, one familiar to older readers. Payments are done with cash and checks. Few merchants accept credit cards. Checks take 5-7 days to clear. There is no mail-in banking or electronic deposits. There are no picture IDs. We have stepped into a reality that looks like 1980.

This world is rocked with a global pandemic. Congress passes a relief and stimulus bill that provides money to each adult in the country. We all wait for our pandemic stimulus checks. People steal the checks out of the mailboxes of people with common last names like Smith, Sullivan and Gonzalez. If the thief does not share that last name, they can sell the check to underground brokers who will find someone with that exact name. 

Once we receive our stimulus checks, we go to the bank and stand in a long line. We always bring something to read or a crossword puzzle to pass the time while we wait. We are practiced at waiting.

If we have a checking or savings account, we can deposit the stimulus check but not cash it unless we already have the money in our account to cover the amount. We cannot spend the funds until the government check clears in 5-7 days. 

After 3 days we start calling the bank to see if the funds are available. The teller is polite but no it hasn’t cleared yet.  After a few more days it clears and we can write a check to pay our rent but there is a late fee. Some us went to a paycheck store and cashed our check after showing 2 forms of ID. Some will take a utility bill as one form of ID. They charge a fat fee as well.

Most of us enjoy the convenience of modern banking and payment services without paying much attention. Little of that time saving convenience is captured in government surveys.  How much time do we save every month? 4 hours? 8 hours? What is that convenience worth? That’s our technology dividend.

Let’s do another common task in our imaginary world – send an email. We need to return a form and we want a record of our communication so we don’t use the phone. We go down to the public library, where the librarian faxes a scan of our paper (Borth, 2020). If we have a message but not a form, we can go to the telegraph office and they will send the message to another telegraph office where the recipient can pick it up.

Since we are nearby, let’s go to the Post Office to get stamps. A fifteen minute wait but we are practiced at waiting. Once we are done at the Post Office, the office supply store is just two blocks away. We need some new typewriter ribbon. Our essay for school is due next Monday and typed papers get a ½ grade bonus. Oh yeah, we want some typewriter ink erasers and a box of paper. The total is a half day’s pay for a person working at minimum wage.

The post office, library and office store are all closed by 5 or 6 P.M. and are not open on weekends, so we take some time off from work to get all this stuff done. Either we call in sick and take the whole day off or fake being sick after lunch and take the afternoon off.

The grocery store closes at 6 PM on weekdays, too late to do shopping after work. It is closed on Sundays, so we do our shopping on Saturday. There are long waits at the cashier but we are practiced at waiting.

All of this inconvenience took time. An average wage in 1980 was almost $7 an hour, about $22 in today’s purchasing power (BLS, n.d.). How much is my technological dividend each month? Let’s make the math easy and call it $100, almost 5 hours of time saving each month.

Let’s return to our question of obligation, but ask it of ourselves – do we have an obligation to donate our technological dividend each month? This could be in the form of time or money. Decades ago utility companies in New York State charged urban customers higher rates to subsidize rural customers living in areas where providing service was more expensive. “We are part of a larger community. We share the burden,” my mother replied to my complaint that this was unfair. How many of us have that sense of community?  

We are far better at recognizing the obligations of others than our own. We are more comfortable discussing the duties of others. In the Sermon on the Mount, Jesus spoke of the human tendency to notice the speck in another’s eye and disregard the splinter in our own eye. That was 2000 years ago. In the past two decades, we have seen many changes in our daily lives but the essential qualities of our nature have changed little in two millennia.

2500 years ago, the Greek philosopher Plato asked what are our obligations. We are still working on the answer. Plato, give us just a few more centuries and we’ll get back to you on that.

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Notes:

Photo by Tingey Injury Law Firm on Unsplash

BLS (n.d.) Average Hourly Earnings of Production and Nonsupervisory Employees, Total Private, FRED Series AHETPI. Federal Reserve. Retrieved from https://fred.stlouisfed.org/series/AHETPI

Borth, D. E. (2020, February 18). Fax. Encyclopedia Britannica. Retrieved from https://www.britannica.com/technology/fax

A Tug of War

June 7, 2020

by Steve Stofka

Is grandma your enemy? An uncomfortable thought. Different generations have different concerns. Funding a solution to one generation’s problem may take resources from other generations. Grandma wants to protect her Social Security and Medicare. Grandma votes her interests.

The introduction of Social Security eighty years ago marked an extraordinary shift in federal policy. For the first time in the history of this country the government took money from one set of people – those who were younger and working – and gave it to other people. This transfer was not a reward for military service – an old soldier pension – but a reward for getting old.  

During the Great Depression thousands of banks failed and millions of people lost their savings. That crisis called for a solution. Instead of addressing the problem, FDR and a super-majority of congressional Democrats created a permanent program that transferred money from people raising families to retired people. No military or community service required. The combined tax contribution to fund the program was 2%. It is now more than six times that.

In 1965, Democrats again enjoyed a super-majority in Congress and a Democratic President. Never waste a super-majority. There are no checks and balances. They passed the Medicare program, funded by a tax on working families who were ineligible for benefits under the program. In every election, old people vote to keep their benefits, and are the largest demographic of voters (Census Bureau, 2019). 

Younger voters change addresses more often. In dense urban areas with multiple voting districts, they are more likely to have out of date voter registration. Voters in rural districts remain in the same voting district when they move a few miles. Rural voters are predominantly older, white and conservative. In the first half of the 20th Century, rural populations migrated from the farm to the city. Rural voters controlled political power in many states because one rural vote counted far more than one urban vote. In two decisions in the 1960s, the Supreme Court interpreted the Constitution to mean one person, one vote (Mosvick, 2020).

As the children of farmers continued to move away in the last half of the century, rural voters adopted other strategies to control electoral power. Less funding for polling places in urban areas, claims of voter fraud, lifetime restrictions against voting by convicted felons, and locating prisons in rural areas where the prisoners are included in the county’s population, but the prisoners cannot vote. Groups like Judicial Watch initiate hundreds of lawsuits in Democratic leaning counties to invalidate the registrations of many voters (Lacy, 2020).

In 1965, a year after passage of the Civil Rights Act, President Johnson hoped that the newly instituted Medicare program would help stem the defection of Southern voters from the Democratic Party. It didn’t. The Party had successfully stifled the voting power of black people in the south for a century. The 13th, 14th and 15th Amendments which gave black people voting power and citizenship status had been forced on the Southern states after their defeat in the Civil War. Feeling that President Johnson and the party had betrayed them, voters sought a champion who could protect white voting power. 

Richard Nixon became their champion by default. In the 1968 race, the Republican candidate employed a “ southern strategy” that spoke to white voters worried that the recently passed Civil Rights Act would give blacks too much electoral power. In the spring, riots and demonstrations broke out after Martin Luther King’s assassination. At the Democratic Convention that summer, bloody conflicts broke out between Chicago police and anti-Vietnam War demonstrators. Nixon promised to be a law and order President, protecting the “old order,” older Americans and the white rural domination that had been the calling card of the Democratic Party in the South. When leading Democratic candidate Robert Kennedy was assassinated that summer, the party was too disorganized to mount a challenge to Nixon. He won by a convincing margin in the electoral college, but bested Hubert Humphrey by only ½% of the popular vote (Wikipedia, 2020). 9 million voters chose Independent Party candidate George Wallace, who appealed to disaffected conservative Democratic voters in the South (PBS, n.d.).

Some of us have supremacist attitudes, some of us condemn those attitudes. Some of us feel threatened at the sight of a black man and call the police. Some of us understand Black Lives Matter; others don’t. We all understand our point of view a lot better than our neighbor’s. We all want to be believed more than believe.

We grant police the sanctioned use of force but we require temperance in their use of it. Clearly, there are many officers who do not have a tempered behavior. The lie is that it is a few bad apples. Smart phones have become common only in the past decade and there are hundreds of videos of officers acting without restraint. In another ten years, there will be thousands.

 One person, one vote. This country has been engaged in a tug of war since its founding. Regional and generational interests pitted against each other. Rural against urban. Businesses vs workers. City governments vs. workers. States vs. citizens. Decide which end of the rope you are on and pull. Grandma grabs the rope. In every election, a lot of money and effort is spent to prevent people from voting. If you don’t vote you are doing those on the other end of the rope a favor and they thank you.

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Notes:

Photo by Arnaud Jaegers on Unsplash

Census Bureau. (2019, July 16). Behind the 2018 U.S. Midterm Election Turnout. Retrieved from https://www.census.gov/library/stories/2019/04/behind-2018-united-states-midterm-election-turnout.html

Lacy, A. (2020, May 28). Right-Wing Groups Aims to Purge 800,000 Voters in Pennsylvania. Retrieved from https://theintercept.com/2020/05/28/pennsylvania-voter-rolls-purge-judicial-watch/

Mosvick, N. (2020, March 26). On this day, Supreme Court reviews redistricting. Retrieved from https://constitutioncenter.org/interactive-constitution/blog/on-this-day-supreme-court-reviews-redistricting.  Also, see Stahl, 2015.

PBS. (n.d.). Thematic Window: The Election of 1968. Retrieved from https://www.pbs.org/johngardner/chapters/5a.html

 Stahl, J. (2015, December 7). Baker v. Carr: The Supreme Court gets involved in redistricting. Retrieved from https://constitutioncenter.org/blog/baker-v-carr-the-supreme-court-gets-involved-in-redistricting

Wikipedia. (2020, June 06). 1968 United States presidential election. Retrieved from https://en.wikipedia.org/wiki/1968_United_States_presidential_election

Rage

May 31, 2020

by Steve Stofka

There are three kinds of rage: the silent and composed rage of men who kneel on necks. Derek Chauvin, the killer of George Floyd in Minneapolis, belongs to that group. There is another group that loots and destroys to express their rage. There is yet another group that displays their rage in organized protest. On Saturday in Minneapolis, that group cleaned up the debris left by the looters Friday night. A CBS reporter was disheartened, or bored, by the lack of violence.

Those in the first two groups – the destroyers – are mostly men. Those in the first group – the quiet destroyers – are middle-aged men who rob others of life, dignity, and basic human rights. They destroy the self-esteem and social cohesion of others. Those in the last group, the noisy ragers, are young, shot full of testorone and unmuzzled. Neither of these groups cleans up after the wreckage they leave behind. Their instinct is to break, not build.

A hundred years ago white people in Tulsa, Oklahoma took out their rage at the success of the black community in their town (Brown, 2018). They burned down most of the black owned businesses and homes, killing more than 300 people and leaving thousands homeless. Rage and revenge provoked many lynchings of black citizens by white mobs. In 1963, white people in Alabama threw rocks at black children trying to go to school (Bell, 2013).

It’s been almost four years since Philando Castile was shot in his car by a police officer in St. Paul. It’s a 20 minute drive across the river from the site of Castile’s death to George Floyd’s death this week in the sister city of Minneapolis. Jeronimo Yanez, the officer who shot Castile, was found not guilty of 2nd degree manslaughter. Derek Gauvin, the murderer of George Floyd, has been charged with 3rd degree manslaughter. Unlike 2nd degree manslaughter, the prosecution does not have to prove intent.

Over 1200 black people have been shot by police in the past five years (Code Switch, NPR, 2020). Only four police officers have been convicted of some crime (MPV, n.d.). Many victims were going about their day when police officers targeted them. Guilty of being black. Some, like Tamir Rice, were children. Such is the rage of white society that they will not let black children play with toy guns.

Mr. Trump, the self-styled King of the United States, threatened to shoot black people for looting stores on Main Street (Lichtman, 2020). White people looting in the Fairfax District of Los Angeles on Saturday night were arrested and loaded into police wagons. Don’t shoot white people. White people stood on charred police cars and took selfies. How many likes could they get?

Four hundred years of white rage against black people. Four hundred years of systemic looting of black labor through slavery and forced prison labor. Two hundred years of vandalism of black communities through housing discrimination and vicious lending practices. When will the rain extinguish the rage in our spirit?

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Notes:

Photo by Holger Link on Unsplash

Bell, D. (2013, June 11). George Wallace Stood in a Doorway at the University of Alabama 50 Years Ago Today. US News & World Report. Retrieved from https://www.usnews.com/news/blogs/press-past/2013/06/11/george-wallace-stood-in-a-doorway-at-the-university-of-alabama-50-years-ago-today

Brown, D. (2018, September 28). ‘They was killing black people’. Washington Post. Retrieved from https://www.washingtonpost.com/news/local/wp/2018/09/28/feature/they-was-killing-black-people/

Code Switch. (2020, May 30). A Decade Of Watching Black People Die. NPR. Retrieved from https://www.npr.org/2020/05/29/865261916/a-decade-of-watching-black-people-die

Lichtman, A. (2020, May 29). The ugly history of Trump’s ‘looting/shooting’ threat. Retrieved from https://www.nydailynews.com/opinion/ny-oped-ugly-history-trumps-loot-shoot-threat-20200529-64c2wp6vhjeazigbgega76r33q-story.html

MPV. (n.d.). Police killed more than 100 unarmed black people in 2015. Mapping Police Violence. Retrieved from https://mappingpoliceviolence.org/unarmed

What’s Really Going On

May 24, 2020

by Steve Stofka

In the latest cable news media surveys, Fox News had 3.7 million prime time viewers, outdistancing cable news/talk outlets CNN and MSNBC (Watson, 2020). Traditional broadcast networks ABC and NBC have 12 million viewers, three times the number of Fox viewers and six times that of MSNBC and CNN (Koblin, 2020). For the 21 million households that have never had cable TV, broadcast news is their only choice.

The Fox News model courts conspiracy theorists, salacious news and rumor. In any country, there is a pool of people eager to believe speculation if it conforms to their sentiments. There are two kinds of conspiracy theorists: those who don’t know any better and those have seen it all and do know better. Conspiracies join the old and the young. 

At first I dismissed speculation that President Johnson would send thousands of young men like myself to their deaths to bolster his political reputation. He secretly taped many phone conversations in the White House. His own words substantiate the claims (Sanger, 2001).

After President Nixon’s landslide victory over Democratic rival George McGovern in 1972, rumors circulated that Nixon had ordered a burglary and wiretapping of  Democratic National Committee headquarters. That’s how Nixon won. Oh, come on. Sore losers. McGovern ran a bad campaign. Within months, those rumors became the subject of public hearings. After Nixon had resigned because he lost party support, some Republicans I spoke with still believed that Watergate was a hoax, Democratic payback for getting trounced in the election. Really? I asked. I was too young to understand, they said.

After yet another trouncing of the Democratic candidate in the 1984 Presidential election, rumors circulated that the Reagan White House was selling weapons to Iran to get money to support the right wing Contra rebels in Nicaragua (Wikipedia, n.d.). The Democrats in Congress had blocked funding for the Contras, but there were any number of ways that the administration could secretly route money to the rebels. Why would White House officials use Iran as a go-between? The country’s head of state had called us the devil. Sore losers, those Democrats. Vicious rumors against the President.

In response to the subsequent Iran-Contra investigation, White House officials destroyed many documents relating to the affair. After several years of denial, Reagan finally acknowledged that there had been such an arrangement but never admitted that he knew about it.

In 2004, rumors circulated that President George Bush concocted evidence so that he could go to war in Iraq and kill Saddam Hussein, the dictator who had tried to kill Bush’s dad in 1993. A ridiculous story meant to take down a President before the election. Democrats were still angry that a conservative Supreme Court had given the Presidency to George Bush in the 2000 election. The sacrifice of so many Iraqi and American lives because of the President’s spite? Come on, gimme a break.

Did Bush go to war with Iraq as payback? Probably not. Did the Bush team manipulate the evidence for going to war? Where are the Weapons of Mass Destruction that Saddam Hussein had hidden? Still hidden.

Why do conspiracy theories persist through the centuries? Many of us like puzzles. There are elements of truth in some conspiracy theories. Are conspiracy  theories true most of the time? No. Is prayer effective most of the time? No. It only has to work a small amount of the time and people pray. Why not? Can’t hurt. If a prayer cost $100, would there be fewer prayers?

Martin Luther protested the selling of indulgences by the Catholic Church to those faithful who were concerned for the health of their everlasting souls.  People who could afford such indulgences were guaranteed a place in heaven. Those who were poor might be condemned to an eternity in hell. He sparked a movement that rejected the intermediation of clergy between each person and God.

Why do people need the intermediation of scientists between each person and the truth?  Scientists can be wrong. That’s the opinion of some Fox News hosts. If scientists are wrong 5% of the time, that is a reason to have doubt, isn’t it? Using the methods of conspiracy theorists, I only need a slim chance of error to disbelieve scientists, and a slim chance of truth to believe a conspiracy theory. Casinos depend on this kind of thinking to make their profits.

Rupert Murdoch is the billionaire head of News Corp, and the owner of Fox News. He is a smart man who understands that the presentation of the news is as important as the news itself. He is a pragmatic man. Anticipating a win by Hillary Clinton in the 2016 election, Mr. Murdoch was fashioning Fox News into a more moderate news outlet (Folkenflik, 2017).

In reaction to Mr. Trump’s unexpected win, he turned Fox News into a megaphone for the White House and the Conspiracy-Theorist-In-Chief, Donald J. Trump. Fox News is the only network to grow its audience each year. That’s smart. Give people what they want. 

Is Fox News spinning fewer fairy tales that feature the President as the saving hero? Lately, he has attacked the network on Twitter because they are not doing enough to get him and other Republicans elected this year (Ward, 2020). Yes, he wrote that. Will the network give the hero of the fairy tale what he wants?

This post has been corrected. An earlier version incorrectly stated that Disney now owned Fox News. The network was not included in the deal when Disney bought 21st Century Fox earlier this year. Thanks to a reader for noting the error.

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Notes:

Photo by Hans-Peter Gauster on Unsplash

Folkenflik, D. (2017, March 14). Murdoch And Trump, An Alliance Of Mutual Interest. NPR. Retrieved from https://www.npr.org/sections/thetwo-way/2017/03/14/520080606/murdoch-and-trump-an-alliance-of-mutual-interest

Koblin, J. (2020, March 24). The Evening News Is Back. N.Y.Times. Retrieved from https://www.nytimes.com/2020/03/24/business/media/coronavirus-evening-news.html

Sanger, D. E. (2001, November 6). New Tapes Indicate Johnson Doubted Attack in Tonkin Gulf. N.Y. Times. Retrieved from https://www.nytimes.com/2001/11/06/us/new-tapes-indicate-johnson-doubted-attack-in-tonkin-gulf.html. (See U. Virginia entry for transcriptions.)

U.S. Senate. (2019, December 12). Watergate Leaks Lead to Open Hearings. Retrieved from https://www.senate.gov/artandhistory/history/minute/Watergate_Investigation.htm

U. Virginia. (n.d.). The Presidential Recordings of Lyndon B. Johnson. Retrieved from https://prde.upress.virginia.edu/content/johnson. (Paywall – summaries free).

Ward, M. (2020, May 21). Trump attacks Fox News for ‘doing nothing to help Republicans, and me,’ get reelected. Politico. Retrieved from https://www.politico.com/news/2020/05/21/trump-attacks-fox-news-doing-nothing-to-help-republicans-in-november-273612

Watson, A. (2020, May 18). U.S. cable news network viewership 2020. Statista. Retrieved from https://www.statista.com/statistics/373814/cable-news-network-viewership-usa/

Wikipedia. (2020, May 14). Iran–Contra affair. Retrieved from https://en.wikipedia.org/wiki/Iran–Contra_affair

The View From Here

May 17, 2020

by Steve Stofka

The editorial page of the Wall St Journal criticized the provision in the CARES act that paid an additional $600 in unemployment benefits to working people told to stay home by their state and local governments (WSJ, 2020). An attack on a policy that supports people during this historic crisis is a personal attack on working families. Some workers are earning more in benefits than they did when working. This offends elitist sympathies. As families overwhelm the resources of food banks nationwide, the country club set worry about the moral hazard of providing an income of basic sustenance to those forced to stay home. What level of hell birthed such sentiments?

When governments order people to stop working, they have a responsibility for monetary damages as well as some compensation for pain and suffering. Some in our country’s aristocracy prefer a system that makes people desperate to work in order to eat and pay their bills. Such workers will be more inclined to compromise their safety and return to work. Who will clean the bathrooms and offices of the executives that own America?

Almost a hundred years ago the German director Fritz Lang painted a dystopian account of social and economic classes in his film “Metropolis.” Each day the workers descended into the underground to keep the machinery of the city running. Above ground, the sons of the elite enjoyed sporting contests and idle pleasures. 

In a past century the elite wore powdered wigs and flared waistcoats to distinguish themselves from the commoners. On the jogging paths in Central Park they might be indistinguishable from other runners. Unlike aliens from another planet the patrician class look human. Their attitudes are not.

State and local governments mandated business closures. Losing a job includes the loss of someone’s employer-sponsored insurance. The $1200 stimulus payment covered one month of COBRA replacement insurance for a family (Garfield, 2020). The elite write these barbaric rules.

To protect themselves, the elite left their tony neighborhoods in crowded Manhattan and Brooklyn (Quealy, 2020). Are they spending quality time at their homes in the Hamptons? The social and economic hierarchy of this world has changed little from the century old society that F. Scott Fitzgerald captured in The Great Gatsby.

As Fitzgerald wrote, the privileged believe that they deserve their entitlements. To criticize such thinking is Socialism or Communism. The elite claim to be the moral standard bearers of the country, the high priests of a religion they call Capitalism. Whatever serves their self-interest is enfolded into that religion. Whatever does not serve their interests is an ism that is un-American. To appease their god, the priests need the sacrifice of thousands of families. Let the subservient workers shed their concerns for their safety and shuffle to their daily toil. So sayeth the precious persons of privilege.

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Photo by Alex Blăjan on Unsplash

Garfield, R., Claxton, G., Damico, A., & Levitt, L. (2020, May 12). Eligibility for ACA Health Coverage Following Job Loss. Kaiser Family Foundation. Retrieved from https://www.kff.org/coronavirus-covid-19/issue-brief/eligibility-for-aca-health-coverage-following-job-loss/. Key highlights by one of the authors https://twitter.com/larry_levitt/status/1261303328425689088?s=21

Quealy, K. (2020, May 15). The Richest Neighborhoods Emptied Out Most as Coronavirus Hit New York City. NY Times. Retrieved from https://www.nytimes.com/interactive/2020/05/15/upshot/who-left-new-york-coronavirus.html

WSJ Editorial Board. (2020, May 14). Opinion | Pelosi’s Presidential Platform. Wall St. Journal.  Retrieved from https://www.wsj.com/articles/pelosis-presidential-platform-11589499163 (Paywall).

Making Sense

May 10, 2020

by Steve Stofka

65 years ago, the scientist and author Isaac Asimov published a novel “The Naked Sun” (Asimov, 1956 – Wikipedia).  A robot detective investigates a murder on Solaria where the inhabitants rarely have physical contact with each other. They teleconference via holograph TV. How did we become characters in a science fiction novel?

The Metropolitan Museum of Art is closed but online visitors can look at some of the collections (MetMuseum, n.d.). Via Zoom, patients can have HIPAA-compliant remote sessions with their therapist (Zoom, 2020). When a friend had a fever, his doctor performed a preliminary screening remotely. Some questions. Tilt your laptop screen down a bit. Hold your head in that position. Good. Open wide and turn slightly to your right. Shine your flashlight down. Hold it there. Turn back toward me. Tilt your head down and to the left. Ok.

The monthly employment was released on Friday. In two months, the unemployment rate went from less than 4%, one of the best in the past century, to 15%, the same level as 1940, when eleven years of a Depression economy had ground the American spirit into a permanent state of disbelief. Industrial production in April was the lowest ever recorded. Annualized auto sales dropped below the levels of the financial crisis in 2008-9.

This country is a world leader in data collection. “Just the facts, ma’am” was an iconic trope of the mid-century TV show “Dragnet.” Because this is the land of so many uncomfortable truths, we shy away from facts. This is the land where boosterism was invented. Thousands of people were drawn to Midwest and western towns by exaggerated claims of opportunity (NEH, n.d.). The taking of land from native peoples, the dismal performance of untrained cavalry in battle against the Plains Indians, and the repeated breaking of treaties were conveniently suffocated by editors and publishers who wanted to appeal to newly arrived European immigrants on the east coast. Those who reported the facts were asked to change their stories to make the settlers and the soldiers look heroic. If Indian people had bought books and magazines, the editors might have portrayed them in a better light.

In the 19th century, most people grew their own food. It was and is hard work. After exhausting the soil many families either worked for a larger farmer or moved to another area and started again. Slavery was a convenient institution for an agricultural economy. Centuries of abuse by Southern landowners were buried in the landfill of American history.

For the next century, scholars in economics, history and social studies will tell the story of this pandemic. High school students will have to remember facts about the pandemic and produce an essay of 250 words for the AP history exam. The people who suffered through the pandemic will be marked by a million graves in cemeteries across the country.  The businesses that faltered and fell will be forgotten.

The economic data produced during this era will become a benchmark for future generations. A record drop in employment, in production, in retail sales, etc. The policies enacted in response to this crisis will certainly influence future generations. Our institutions are shackled by the chains of historical crises.

Former Presidential candidate Andrew Yang ran on a platform of a Universal Basic Income (UBI), a monthly payment to all Americans as a substitute for the dozens of housing, food and education subsidies that clog our bureaucracy and contaminate our politics. His supporters –  the Yang Gang – continue to support this common sense platform. It is simple. It gives people dignity and some control. Mr. Yang could not gain popular traction among Democratic voters. The party thrives on complex bureaucratic programs that require a lot of administrative staff. Simplicity is a long word that many Democratic politicians cannot spell.

Had such a monthly program been in place, a lot of suffering might have been avoided.  The IRS reports that it has sent out stimulus checks to one-third of the population (Keshner, 2020). Are you in the fortunate group who has received the funds? Millions of people are waiting for their stimulus check. Millions of applicants anxiously await their unemployment checks. The state systems are overwhelmed by the number of people applying for benefits. Food banks are reporting even more demand than they experienced during the financial crisis.

We live in a highly developed and educated society, but we respond to crisis with our monkey brains. Each of us has a unique sense of what is fair, and injustice triggers our sense of outrage. Politicians know this. They work hard to control the policy levers. They need us to vote for them. A monthly check to everyone does not secure political loyalty from anyone. Mr. Yang, stop making sense!

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Photo by Craig Whitehead on Unsplash

Asimov, I. (1956). The Naked Sun. Retrieved from https://en.wikipedia.org/wiki/The_Naked_Sun

Keshner, A. (2020, May 8). IRS has paid out over $218 billion in stimulus checks. Retrieved from https://www.marketwatch.com/story/the-irs-has-already-paid-out-over-half-the-stimulus-check-money-heres-where-it-went-2020-04-24

Metropolitan Museum of Art. (n.d.). Retrieved from https://www.metmuseum.org/

National Endowment for the Humanities (NEH). (n.d.). Boosterism on the Prairie. Retrieved from https://publications.newberry.org/makebigplans/node/3162

Zoom. (2020, April). Video Conferencing, Web Conferencing, Webinars, Screen Sharing. Retrieved from http://zoom.us/. HIPAA Compliance Document. https://zoom.us/docs/doc/Zoom-hipaa.pdf