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The Magna Carta and Marbury

[ 79 ] June 16, 2015 |

Magna-Carta-signing

Tom Ginsburg:

MAGNA CARTA, on which King John placed his seal 800 years ago today, is synonymous in the English-speaking world with fundamental rights and the rule of law. It’s been celebrated, and appropriated, by everyone from Tea Party members to Jay Z, who called his latest album “Magna Carta Holy Grail.”

But its fame rests on several myths. First, it wasn’t effective. In fact, it was a failure. John was a weak king who had squandered the royal fortune on a fruitless war with France. Continually raising taxes to pay for his European adventures, he provoked a revolt by his barons, who forced him to sign the charter. But John repudiated the document immediately, and the barons sought to replace him. John avoided that fate by dying.

The next year, his young son reissued Magna Carta, without some of the clauses. It was reissued several times more in the 13th century — the 1297 version is the one on display in the National Archives and embodied in English law. But the original version hardly constrained the monarch.

A second myth is that it was the first document of its type. Writing in 1908, Woodrow Wilson called it the beginning of constitutional government. But in fact, it was only one of many documents from the period, in England and elsewhere, codifying limitations on government power.

It’s not a precise comparison, of course, but I would say that roughly the Magna Carta is to the development of constitutional government as Marbury v. Madison is to the development of judicial review. That is, it’s a relatively trivial episode that ended up being used well after the fact to justify changes that were happening for independent reasons, and its symbolic importance is sometimes mistaken for actual causal significance. The symbolic use of the Magna Carta is of greater historical importance, but if advocates of constitutionalism didn’t have the Magna Carta they would have used something else.

I assume it’s unintentional, but I also like this:

Magna Carta has everything going for it to be venerated in the United States: It is old, it is English and, because no one has actually read the text, it is easy to invoke to fit current needs. A century ago, Samuel Gompers referred to the Clayton Act as a Magna Carta for labor…

Since, as George Lovell put it, the immediate substantive value of the Clayton Act to the labor movement was worth less than the souvenir pen Wilson used to sign it, Gompers had a point!

Ethnic Cleansing in the Dominican Republic

[ 27 ] June 16, 2015 |

0108-Dominican-citizen-Haiti-Stripping-Citizenship

The long time Dominican Republic treatment of Haitian migrants has been an abomination. Now it is getting worse with the DR seeking to strip descendants of Haitians of their citizenship.

…Link is fixed. This is what happens when you set up material for the next day because you are going to be at a conference and then you screw it up. Thanks to Origami Isopod for the link. Also, thanks to the LGMers who came out for my DC booktalk last night. Working on scheduling a couple more events and will let you all know. I can say that those in New York should plan on being at Local 61 in Brooklyn on July 29 for drinks and me.

Good Art is Not A Self-Help Manual

[ 167 ] June 16, 2015 |

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There is a familiar kind of inept criticism, sometimes covered here, which assumes that when bad behavior is portrayed with insufficient didacticism that the creators must endorse it. Noah Berlatsky’s critique of GoodFellas flirts with this argument, but lands at a different, more original kind of terrible argument:

And that’s precisely why Smith’s callow reading can’t be dismissed. Goodfellas shows the ugly, stupid, humiliating consequences of the manliness Smith touts, but it has nothing to offer in its place. If you’re not the guy screwing people over, then you’re the guy being screwed. Goodfellas’ gendered imagination allows for no other positions.

So Berlatsky concedes that GoodFellas is not presenting us with role models, even if Scorsese assumes that the audience can draw the conclusion that robbing and killing people for a living is immoral on its own. He even seems to concede that Scorsese sees this conception of masculinity and the horrible behavior of the characters as being linked. But where is the constructive alternative? Why can’t this movie about Brooklyn mobsters tell us how to live?

I’m curious how Scorsese could have made the movie less of a “chore” for Berlatsky to sit through by showing modes of masculinity other than those practiced by the characters the film was about. Perhaps Henry Hill and his friends could have been urbane, feminist intellectuals who made sure to get home in time from the hijacking to ensure that they took an equal share of the domestic work? Or maybe he could have had lengthy coda from Hill’s witness protection period, in which Hill explains in lots of expository dialogue over some egg noodles and ketchup how the particular form of masculinity he was embedded in was a trap, and dammit a man is a man when he can offer his hand, he don’t have to perform like John Wayne in some B feature flick. Perhaps we should consider the possibility that Western art peaked with After School specials and The Newsroom.

Or maybe Scorsese could tell the story he wanted to tell and assume that his job is to make the best movies he can, not to tell people how to live ethically. I’m still inclined to think he chose the right course. Glenn Kenny’s remarks about The Wolf of Wall Street are also relevant here.

Today in the New Gilded Age

[ 95 ] June 15, 2015 |

Simpsons_angry_mob

The hard times of the uber wealthy:

Billionaire hedge fund manager Dan Loeb and Lightyear Capital Chairman Don Marron are among the collectors who will head to the Swiss city of Basel to check out the world’s largest modern and contemporary art fair.

Art Basel opens to invited guests on June 16 in the quiet Swiss city on the Rhine River. The fair’s 46th edition includes 284 galleries from 33 countries showing works by 4,000 artists. Insurer AXA Art estimates there’s 3 billion euros ($3.4 billion) of art on view, about the same as last year.

Last month’s New York auctions set new records as $2.7 billion of art changed hands — up 23 percent from a year earlier — and a Picasso painting fetched $179.4 million.

“Interest rates are so low that people have so much money they don’t know what to do with it,” said Robert Landau, owner of Landau Fine Art, which is offering a $30 million Pablo Picasso painting. He said one of his clients is a 37-year-old man who retired after earning a fortune and is “sailing around the world and buying paintings to put on the boat.”

Warren Buffett’s NetJets Inc., a sponsor of the fair for the 12th year, said it has booked about 110 private flights in and out of Basel, a 10 percent increase from a year ago.

Rain Barrels

[ 77 ] June 15, 2015 |

rain-barrel

That collecting rainwater on your own property in barrels remains illegal in Colorado is a great entry point into the complex and extraordinarily contentious water politics of the West, where every drop can lead to a legal action.

Another Trip to the Appelbee’s Salad Bar

[ 47 ] June 15, 2015 |

David Brooks and facts — so often a distant relationship.

Of course, pointing this out presumably makes you guilty of “correct politicalness.” Brooks is also a fan of the defense that Ferguson hung such a maladroit label on:

I went through some of the other instances where he made declarations that appeared insupportable. He accused me of being “too pedantic,” of “taking all of this too literally,” of “taking a joke and distorting it.” “That’s totally unethical,” he said.

The King v. Burwell Waaaaaaaambulance

[ 57 ] June 15, 2015 |

Cute-Crying-Baby

Conservatives are whining about Obama offering criticisms of the argument that Spain was invaded by the Moops. And I guess if you were making that argument you wouldn’t want it subject to any scrutiny either:

And yet various conservatives who anxiously want the Supreme Court to willfully misread the law and cripple ObamaCare reacted hysterically. “[T]ypical Obama bullying of the Court,” huffed the legal scholar and blogger Glenn Reynolds. “[T]here’s nothing ‘moral’ about attempting to bully the Supreme Court by presenting a false choice between the rule of law and love for one’s neighbor,” thundered a Republican legal operative. Michael Cannon, one of the major drivers of the litigation, which claims the federal government does not have the right to provide subsidies to states that do not establish their own health care exchanges, asserted that it was “a speech designed to cow the Supreme Court justices into turning a blind eye to the law.”

[…]

But the quality of the arguments against Obama isn’t really the point. Claiming that Obama isn’t allowed to criticize the court is an attempt to control the politics should the court wreck the federally established exchanges. As Sen. John Thune’s infamous bellyflop on Twitter showed, Republicans will try to argue that if a conservative challenge to the ACA is accepted by a bare majority of GOP-appointed Supreme Court justices, and state and federal legislators refuse to do anything as millions of people lose their insurance, it’s Barack Obama’s fault.

If that argument sounds dumb, it’s because it is. So I really can’t blame the ACA’s opponents for their preemptive whining. Like every other aspect of this latest legal challenge, the argument is an almost comically transparent fraud. If I was trying to sell the idea that Congress set up a federal backstop that was designed to fail, and kept this a secret for reasons nobody has ever been able to explain, I might argue that disagreeing with me was inherently illegitimate too.

Does someone argue that Obama shouldn’t be allowed to argue that the Court shouldn’t have taken the case because of President, Senate Majority Leader, Speaker of the House, President, Secretary of Health and Human Services, and first overall pick in the 2015 MLB Draft Jonathan Gruber? You’ll have to click to discover the surprising answer!

This Day in Labor History: June 15, 1990

[ 21 ] June 15, 2015 |

On June 15, 1990, 400 striking janitors in Los Angeles who had organized with the Service Employees International Union (SEIU) and were trying to secure a contract with International Service Systems (ISS), who had the contract to clean many of the city’s downtown office buildings, were beaten by police as they attempted to cross a street. Around 90 strikers were wounded and 38 were arrested. This event galvanized support for the janitors and is an important event both in the history of Latino labor in the United States and the growth of SEIU into arguably the most powerful union in the United States during the early 21st century.

In 1983, the average wage for a janitor in Los Angeles surpassed $7 an hour and included health insurance. By 1986, that had plummeted to $4.50 and insurance had disappeared. This happened through a phenomena we are familiar with today–instead of employing their own janitors, building owners began contracting the work out to an outside company that put enormous downward pressure on wages and working conditions. These companies largely hired undocumented workers, especially from Central America, that they could control and who had little power to resist. Once again, we see how contracting out work so often leads to downward pressure on wages and working conditions.

What was happening in Los Angeles ravaged SEIU locals around the country. After a 1985 lockout in Pittsburgh, the union looked for a new campaign to fight back. SEIU sought to reverse these losses in 1987 with the Justice for Janitors campaign. The plan, developed primarily by Stephen Lerner, targeted building owners rather than contractors as they held the real power and could roll the higher costs of treating workers decently into the contract as opposed to a contractor then losing out to a non-union agency if the campaign targeted them. The campaign had early successes in Denver and Atlanta before moving on to the tougher, larger cities of Los Angeles and Washington, DC.

JusticeforJanitors_crowdsm

It was in Los Angeles that the movement achieved its greatest victories. Local 339 in that city became the center of the national campaign in 1990. Some of this came from the fact that the Central American workers who made up the local’s core already knew social struggle. These were refugees from the civil wars in Guatemala and El Salvador. They were, as a whole, less scared of civil disobedience than native-born workers, despite their undocumented legal status. They began following building owners to their nice restaurants and country club and heckling them, while using leaflets and demonstrations to get the buildings’ tenants to place pressure on the owners to settle the issue. This strategy also avoided the long and often futile process of going through a union election and dealing with the National Labor Relations Board. Given how long such a process takes and how that system has become co-opted by employers, it made sense to pressure employers to accept a union without an election. Effectively, the Justice for Janitors campaign borrowed many of the tactics of the civil rights movement to build public sympathy rather than the classic tactics of the labor movement.

Perhaps the most aggressive building owners and contractors were at Century City, a sizable office complex where International Service Systems had the contract. With the building owner and ISS unwilling to deal, the union led the janitors on a strike in May 1990. It was during these protests, on June 15, that the police attacked the janitors. They did so after shouting orders to disperse only in English with a group of workers who were largely monolingual in Spanish. As the office workers looked on in horror from the buildings, the police attacked the strikers for two hours. They used their riot batons to beat the workers at the front of the line, then engaged in a flanking action that trapped the strikers in a parking garage. When the workers tried to flee, they were arrested for failure to disperse. 90 workers were injured, 19 seriously. One suffered a fractured skull. One pregnant worker miscarried her baby.

J4J_1990policebrutality

This was an overwhelming error for the police, building owners, and ISS. Public sympathy overwhelmingly supported the janitors after the violence. The mayor of Los Angeles had mostly stayed out of it until this point, but after the beatings, he spoke out for the union. It seemed to many that the police wanted to teach these immigrants a lesson for causing problems. SEIU sued the LAPD for civil rights violations, leading to a $2.35 million settlement in 1993. The building owner finally caved and placed pressure on the contractor to settle. This led to the establishment of a master contract in Los Angeles in 1991.

This of course did not transform the lives of janitors overnight. Other cities, especially Washington, saw even more intransigent resistance than Los Angeles. To coordinate these national campaigns, critics noted how SEIU leadership rode roughshod over locals who refused to follow the international’s strategy. They claimed the aggressive actions against these locals undermined union democracy, while the practice merging small locals into larger state and region wide locals that could have greater collective political power but which isolated the former officials of those locals who didn’t have the power to win office in the larger organizations. I have to admit that I don’t have all that much sympathy for those arguments, as the need to get lame locals to actually do something may supersede idealized union democracy and the benefits of concentrating worker power into large locals has real political advantages. I know many disagree with me on this point and I guess it depends on what one wants out of the labor movement.

The campaign was one of the greatest victories for organized labor in the era and announced SEIU’s arrival on the national labor scene. By 2000, the Justice for Janitors had organized janitors around the country with companies seeking to sign new contracts in order to stave off more trouble. By 2005, SEIU represented 70 percent of janitors in 23 of the nation’s 50 largest cities. For the 21st century, that’s impressive density, especially for private sector work.

The campaign is also notable for representing the new inclusion of Latinos in the labor movement. For most of organized labor’s history, unions had been hostile to immigration, feeling that the competition undermined their wages and ability to win contracts. Sometimes this could get quite ugly, such as the Chinese Workingmen’s Party role in the Chinese Exclusion Act and the American Federation of Labor’s active support of immigration restriction in the 1920s. But the decline of immigration helped undermine the labor movement as immigrants have consistently provided new ideas and propensity for direct action to the movement, often in opposition to the relatively conservative unionism of native-born Americans. SEIU’s open embrace of immigrants recognized that Latinos were likely to be very good unionists, in part because of traditions of social justice they experienced in their home nations. Ever since 1990, immigrants have played a larger role in the labor movement, especially with the last industrial-style unions seeking to hold on against the corporate onslaught against unions, such as SEIU and UNITE-HERE.

SEIU has named June 15 Justice for Janitors Day to commemorate the event.

This is the 146th post in this series. Previous posts are archived here.

Water and the 1 Percent

[ 124 ] June 14, 2015 |

rancho_santa_fe_luxury_homes

It is so hard being extremely wealthy in this communist nation:

Drought or no drought, Steve Yuhas resents the idea that it is somehow shameful to be a water hog. If you can pay for it, he argues, you should get your water.

People “should not be forced to live on property with brown lawns, golf on brown courses or apologize for wanting their gardens to be beautiful,” Yuhas fumed recently on social media. “We pay significant property taxes based on where we live,” he added in an interview. “And, no, we’re not all equal when it comes to water.”

Yuhas lives in the ultra-wealthy enclave of Rancho Santa Fe, a bucolic Southern California hamlet of ranches, gated communities and country clubs that guzzles five times more water per capita than the statewide average. In April, after Gov. Jerry Brown (D) called for a 25 percent reduction in water use, consumption in Rancho Santa Fe went up by 9 percent.

But a moment of truth is at hand for Yuhas and his neighbors, and all of California will be watching: On July 1, for the first time in its 92-year history, Rancho Santa Fe will be subject to water rationing.

Will these people be able to survive if they xeriscape their yards? Or instead should the state reduce the water use of the poor to 1 shower a week while the ultra-wealthy open fire extinguishers to run down the drain because they can?

A glimpse into my inbox — if I actually responded to lunatics, which I’m doing today because why not?

[ 29 ] June 14, 2015 |

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”

[ 82 ] June 14, 2015 |

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I’m sure some of you have read Jennifer Gonnerman’s extraordinary story about Kalief Browder, who was arrested and on the most threadbare of evidence charged with a minor theft. He was held at Riker’s Island, sometimes in solitary confinement and sometimes subject to horrible abuse, for three years without trial.

There’s no way for this story to have a happy ending, but there could be better and worse ones. You’ve probably anticipated that Browder’s case falls into the latter category:

Last Monday, Prestia, who had filed a lawsuit on Browder’s behalf against the city, noticed that Browder had put up a couple of odd posts on Facebook. When Prestia sent him a text message, asking what was going on, Browder insisted he was O.K. “Are you sure everything is cool?” Prestia wrote. Browder replied: “Yea I’m alright thanks man.” The two spoke on Wednesday, and Browder did seem fine. On Saturday afternoon, Prestia got a call from Browder’s mother: he had committed suicide.

Almost everything wrong with American criminal justice in one story: ginning up baseless charges based on particularly unreliable eyewitness testimony; prisons being run as torture camps; not only denials of basic due process rights but a hopelessly clogged system that relies on the vast majority of the accused to waive their right to a public trial and has various means of punishing people who won’t play ball. And, remember, this is a story of New York City — this is not just a red state phenomenon by any means.

On the Decline of a Hero to Western Liberals

[ 158 ] June 14, 2015 |

It turns out that Aung San Suu Kyi is basically as bad as the Myanmar government on the issue of the Rohingya.

The Nobel Prize winner — and prospective presidential candidate — is seen around the world as a beacon of hope for Burma, but the Rohingya crisis has cast a dark shadow over her democratic credentials. As thousands of Rohingya flee to Burma’s democratic neighbors — Indonesia, Malaysia, and even earthquake-ravaged Nepal — the international community cannot ignore their persecution. They have suffered violent pogroms from Buddhist extremists. Their many successfully-run businesses have been burned. The government has barricaded them into concentration camps, where they are in dire need of food, water, and medical help. Aid groups that have been trying to help them face being banned from the country. Meanwhile, Aung San Suu Kyi’s response to this — the greatest human rights issue facing her country — is shocking.

In 2012, she said she “didn’t know” if the Rohingya could be citizens. In doing so she aligned herself with the government’s official policy that the Rohingya don’t exist. In fact, Burmese officials threatened to boycott the recent regional conference to address the migrant crisis if the other participants so much as used the word “Rohingya.” This is in spite of the fact that the Rohingya have lived in Burma for centuries — some scholars say they are indigenous people of the Rakhine state.

Aung San Suu Kyi’s more recent comments are no redeemer: “If I speak up for human rights, [the Rohingya] will only suffer. There will be more blood.” Why the evasiveness? Aung San Suu Kyi is courting the country’s Buddhist majority, among whom hatred for the Rohingya is rampant.

The real lesson here for western readers is that heroes don’t exist and that the entire idea of heroism should be eliminated. That doesn’t mean we shouldn’t be disappointed in her–we obviously should be sad that she is so indifferent to human rights violations against a minority–but it does mean that people exist in their place and time, have prejudices, and generally are flawed human beings. That Aung San Suu Kyi bravely stood up to the Myanmar military regime for so long in no way automatically means we should expect she cares about the rights of minorities, as we are discovering. The more interesting question is what it says about us that we would expect to her to hold our positions on this matter? Western liberals found her a useful way to project their values on idealized figure from the developing world, something far easier to do when the subject is under long-term house arrest by an awful regime. But that she would be more than willing to sacrifice minorities to win support from the majority population, is this surprising at all?

This doesn’t excuse her lack of interest in minority rights. I just don’t think it’s remotely surprising.

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