Bloomberg Schools Flunk the Constitution

Years ago, when I was interviewing Justice William Brennan in his Supreme Court chambers for my book, Living the Bill of Rights, he suddenly became somber.

“How,” he asked, “can we take the Bill of Rights off the pages and into the very lives of students?” He was aware, even back then, how little time was spent in our public schools on who we are as Americans and what it keeps taking to protect our individual liberties against overreaching governments. (This was before George W. Obama.)

Were he still with us, Brennan would be even more disturbed by a report from an organization that honors his principles and actions, the Brennan Center for Justice in New York.

On April 13, the center released “A Report Card on New York’s Civic Literacy” by Eric Lane and Meg Barnette. The report received scant attention or follow-up, but a week later in the New York Daily News, Eric Lane–Distinguished Professor of Public Law and Public Service at Hofstra University Law School–did get space to emphasize that here and nationally, “unless we quickly address our disengagement from and ignorance of the way our government works through aggressive teaching of the basics in our schools, the nation’s very strength and prosperity will be at stake.”

And especially such very personal Fourth Amendment rights to privacy against “unreasonable searches and seizure.” Under our Education Mayor and Police Commissioner Ray Kelly, this city leads the nation in “stops and frisks,” largely of blacks and Latinos, without the cops first going to a judge. Between January and March of this year, Kelly set a record: 183,326 interrogated with only 12 percent arrested or given a summons (Daily News, June 12).

How would the city’s students know about the Fourth Amendment? Here, and throughout the country, the fixation on collective standardized tests in reading and math has led to the absence of civics classes throughout the country. Early in his tenure, I asked Joel Klein about this most basic educational need if this generation and those that follow are not to be conditioned to accept being in a police state as normal. “I’m working on that,” Klein assured me. If he ever actually was concerned, this Brennan Center report gives him an F for what he did. And I’ve heard nothing from Chancellor Dennis Walcott about bringing the Constitution back to our students.

Let me challenge you, Chancellor Walcott.

What do students know about presidential and Justice Department contempt for the separation of powers, which were intended during the formation of the Constitution to prevent our becoming a kingdom? The rampant use, for a present example, by Bush-Cheney-Obama of “state secrets” to prevent cases against a unilateral federal government from even being heard in our courts?

Also, the almost daily increase in our society being in a state of surveillance. The FBI, for instance, can start an “assessment”–an investigation–of any of us without going to a judge.

In what is reliably called “the nation’s report card,” the National Assessment of Educational Progress (NAEP) reported on how much citizens know about–and care about–the most dangerous subversions of the Constitution by the Bush-Cheney and now Obama administrations.

This is what “the nation’s report card” revealed particularly about students across the country: “Only one in 10 demonstrated acceptable knowledge on the checks and balances [the separation of powers] among the legislative, executive and judicial branches” (New York Times, May 4).

Also: “a smaller proportion of fourth and eighth graders demonstrated proficiency in civics [who we are as Americans] than in any other subject the federal government has tested since 2005.”

What is the subject of which they are most ignorant? History!

Now dig this from the Brennan Center Report on New York’s Civics Literacy: “For years [all of] New York required social studies [civics] assessment tests for its fourth and eighth grade students. The eighth grade assessment consisted mostly of history questions . . . Overall, New Yorkers did not perform well on those tests, and New York City students performed horribly. At a 2005 hearing of the New York City Council’s Education Committee, school officials informed the council members that “more than 80 percent of New York City eighth graders failed to meet state standards in social studies.”

So what happened as a result? “School officials said that they pay little attention to fourth and eighth grade social studies assessment tests ‘because they are not among the criteria used to determine if schools are performing adequately, either under state regulations or the federal No Child Left Behind law.'”

I remember that when Eva Moskowitz was a member of the City Council–before her Success Charter Network of schools had Harlem parents urgently trying to have their children accepted–she was the only council member to keep after Joel Klein about what he was actually doing to restore classes in civics. Klein did help her charter schools, but I recall nothing he actually did to respond credibly to those questions by her.

Hey, Chancellor Walcott, what do you have to say in response to the following urgent concern in the Brennan Center Report?

“Civic literacy is the prerequisite for developing the ties that bind us together as a nation. It enables us to disagree and pursue our interests and the common interest . . . Without these tools, we are now moving in a different direction, heading toward what the philosopher Michael Sandel calls a ‘story-less condition,’ in which ‘there is no continuity between present and past, and therefore no responsibility, and therefore no possibility for acting together to govern ourselves.” While Ray Kelly keeps zealously stopping and frisking citizens.

This column is open to you, Chancellor Walcott, to tell New York students, parents, and other citizens and residents what is being done in real life, real time, to engage students in learning why Thomas Jefferson often warned that the only basic safeguards of our constitutional rights and liberties are in the people themselves.

In one of the last conversations I had with Justice William Brennan, he said to me, “Remember, pal”–he called many people “pal”–“liberty is a fragile thing.”

And if you don’t know what your constitutional liberties are, how will you be able to realize they’re gone?

If I were teaching civics in this public school system, I would ask students to react–after they’d discovered who Jefferson, James Madison, Supreme Court Justice Hugo Black (“Don’t be afraid to be free!”), et al., were–to what an underrated Supreme Court Justice, David Souter, said while declaring his retirement at the National Archives Museum on May 21, 2009: Who we are as Americans “can be lost, is being lost, it is lost.” What’s needed “is the restoration of the self-identity of the American people.”

Imagine Thomas Jefferson in East Harlem seeing cops stopping and frisking people in total disregard of the Bill of Rights’ Fourth Amendment. He’d think King George III had taken back the colonists.


Bloomberg’s Schools: Is This America?

For the future of this and any city—and its children—reporting inside the schools can be journalism’s most important beat. Among New York’s daily newspapers, Meredith Kolodner of the Daily News keeps setting the standard for digging deep into the dark side of the Bloomberg-Klein-Walcott school system.

From her “Sacrificed for Charters” (March 31, 2010), did you know: “Special Education students are falling victim to the fierce battle to find space for charter schools inside city school buildings. . . . At eight of the 15 buildings making room next year (2011), at least a quarter of the students are special education or seriously disabled. . . . For these vulnerable kids, the space crunch may mean less one-on-one instruction, therapy sessions in the back of the classroom, and cramped conditions for wheelchair-bound students, nearly two dozen parents said in interviews.”

What say you, Chancellor Walcott?

This past March 30, Kolodner reported in “More Homeless Kids Put Schools to Test”: “At Middle School 349 (Washington Heights), where more than a third of the students are homeless, budget cuts have trimmed after-school programs to a couple of days a week. . . . Homeless kids have to go to the local library and wait for one of six computers to open up so they can do homework.”

And, at P.S.128 up the road: “ ‘Their homework is lacking because they have no space and no quiet time outside of school,’ said Marie Andino, a math coach. ‘We see it in the classroom when they’re falling asleep.’ ”

If our Education Mayor came by, at least they’d be awakened for a photo op.

Around the country, as I’m continually discovering, more teachers and even some school systems know damn well that collective standardized tests (and the constant testing for them) tell you nothing about what individual kids are actually learning.

But in our decaying New York school system, Kolodner reported on May 3: “Children in third grade through eighth grade have been practicing for weeks—sometimes months—for the state reading and math exams in a bid to boost scores that plunged last year”—after it was shockingly revealed how phony the previous official test scores were.

Kolodner quoted parent activist, Eric Perez: “They’re pushing the children, but not in the way that’s conducive for their learning.”

Chancellor Walcott, with all the steep budget cuts in schools here and around the country, educate yourself by reading Marion Brady’s “A Not-So-Modest Proposal” (Washington Post, April 24): “There’s one multi-billion dollar cost of educating that’s not scheduled to be cut—high-stakes, standardized testing. In fact, Arne Duncan, Secretary of the U.S. Department of Education, says that the number of such tests is going to significantly increase” (emphasis added).

Put yourself in the history books, Chancellor Walcott, and cut way down on standardized tests in this city—no matter what the Education Mayor says—and start insisting that the focus of each teacher and principal be on each individual child.

And pay attention to this, Chancellor: Credit the Daily News for this headline on April 21 on Kolodner’s report: “They gotta be kidding! Crying Qns. 7-yr-old cuffed by cops at school.”

Special-ed first-grader Joseph Anderson—who has attention-deficit hyperactivity disorder—was getting very emotionally upset as he had trouble decorating an Easter egg. The school called his mother, who said she’d be right over, but then called the cops, who beat her to it. They put the seven-year-old in metal cuffs.

Ever since Joseph became educated about this city’s cops, his mother reports, he has been throwing up and, she says, “If he hears an ambulance, he runs under the bed and screams, ‘They’re going to get me!’ ”

His mother does not let him watch the news anymore “because if he sees cops, he cries.”

What say you, Commissioner Ray Kelly? Does this dangerous kid belong to the New York Civil Liberties Union?

Now, the indignant seven-year-old says: “I want those cops to say sorry to me and the principal for calling the ambulance and handcuffing me” (Kolodner’s “Once in a While We Do Cuff the Kids,” Daily News, April 22).

In that story, Chancellor Walcott says he will look into the incident. (I guess he doesn’t read the tabloids which, far more than the New York Times, tells us about school invasions by Ray Kelly’s cops.)

Walcott also says, referring to what happened to this seven-year-old: “There are occasions when [cuffing] needs to be done, and I think it’s the responsibility of the principal and school safety to work together to make that determination.”

After all these years as Bloomberg’s Deputy Mayor for Education, doesn’t he know that the School Safety Agents (trained by the NYPD and with the power to arrest) do most of the cuffing of school kids—disproportionately black and Latino ones? These enforcers are not responsible to principals or the Department of Education.

When a parent rushes to find a youngster being cuffed and held at a precinct, he or she doesn’t stop first at the principal’s office—or the chancellor’s. Has Walcott ever objected to this? I haven’t any evidence that shows that he doesn’t approve of our Education Police Commissioner suspending kids and their due process rights. There’s not a peep out of Bloomberg.

This chancellor, supposedly infinitely more qualified for this job than the hapless Cathie Black, got a response he deserves from this terrified seven-year-old’s mother. Said Jessica Anderson: “He was crying and saying, ‘I want Mommy.’ Why handcuff him? Why get the cops involved? He’s only seven. . . .”

When she finally got to see her son and found he was in handcuffs, “I was crying,” she said. “I broke down. They know that my son is special ed. It’s like trying to get rid of him, and it worked because I’m not sending him back there.”

What did the NYPD have to say? “He was acting in a threatening manner. He was a danger to himself and others in the classroom. He started spitting and cursing at the officers. The handcuffs were used to restrain the child because of his behavior. He was a danger to himself.”

Having reported often in the Voice on a considerable number of cases in which the School Safety Agents not only cuffed but beat young kids—though witnesses said they weren’t threatening anybody—I am, to say the least, skeptical of this police defense of their putting these kids in a perp walk through the school.

Joseph’s mother was later told by a spokesperson for the school that her son, scared, did jump up on a table, shouting, “I just want my mommy!”

In this report, Kolodner quoted Kim Sweet of this city’s Advocates for Children: “I’ve seen far too many cases of kids this young handcuffed and thrown into ambulances for behavior at school. Just imagine being a little kid and having people come, clamp your hands behind your back, and throw you in an ambulance.”

Hey, Mayor Mike, can you imagine this? Give it a try. Let us know how it felt, even in imagination. And I would be grateful for any detailed, documented accounts of other school kids being handcuffed. Parents and appalled teachers (there are a good many) can write to me at the Voice.

I got to know well a Supreme Court Justice, William Brennan, who was attentive to official abuse of students in our schools. In Doe v. Renfrow (1981), 13-year-old Diane Doe (not her real last name because she was a minor) had been strip-searched during a dragnet police search for drugs in her school. No student was under particular suspicion. This was a general warrantless search, like British officers so often did when we were colonists.

Before she was strip-searched, police-trained German shepherds had pushed their noses and muzzles into Diane’s legs. No drugs were found on her by them or when she was strip-searched. This is still going on at some schools in this alleged constitutional republic.

Diane’s case was thrown out by a district judge and then dismissed by the Supreme Court. Brennan dissented, telling me, “I was really mad.”

He called what happened to Diane “a violation of human decency.” Thinking of what seven-year-old Joe Mitchell learned about human decency in New York City’s public schools, I remembered what Justice Brennan warned after Diane’s experience: “Schools cannot expect students to learn the lessons of good citizenship when the school authorities themselves disregard the fundamental principles underpinning our constitutional freedoms.”

If we ever have real-life classes in civics in this city’s schools, Chancellor Walcott should come in and show the students the basis for how handcuffing seven-year-olds (a five-year-old has also been handcuffed) can be found in our Constitution. My next monthly column: The Brennan Center for Justice’s report card on New York’s civic literacy. It’s not only about Ray Kelly’s educators in our schools, and some of you adults may be embarrassed.


Consider the Constitutions of Obama and McCain as You Choose Sides

On the blessed day when George W. Bush leaves office, he will have left behind a largely hidden parallel government within this nation, a rogue apparatus that allows a President to be the law, with a holy patriotic mission to ignore the Congress and the courts when decisive action is needed.

And if the other branches of the visible government act up—brandishing the separation of powers inscribed in the Constitution—this president-czar works, mostly in secret, to maintain his authority.

The next president, to restore the Constitution and shred the Bush legacy of shadow law—and, in the process, repair our deeply scarred reputation in the world—must begin to root out the inner machinery of Bush’s parallel government.

But once he’s elected, who is more likely—McCain or Obama—to avoid being seduced by the intoxicating powers of the Oval Office? As you leap to an answer, keep in mind the cautionary historical warning by Oberlin College professor David Orr in “Refitting the Presidency to the Constitution” (, May 18): “Unless explicitly repudiated by the next president and prohibited by law, the precedents of the Bush presidency will stand. The expanded powers of one president typically are carefully guarded by their successors . . . Republican or Democrat.”

Let us suppose that Barack Obama is the next president and is impelled to extirpate the seeds of tyranny that Bush, Cheney, et al. have planted.

The odds are strong that the Democrats will then have larger majorities in both branches of Congress. But the odds are also strong that the current Democratic leadership—Harry Reid and Nancy Pelosi—will remain in place. Neither has shown sufficient interest, let alone the passion, to resuscitate the Constitution.

Would Obama, after only a short time in the Senate, have the sustained determination, leverage, and organizing ability necessary to bypass Reid and Pelosi and create a new majority for the Constitution in both houses?

Let us further suppose that Obama has the grit to accomplish that, energizing even Democrats without safe seats so that they will spend less of their time raising money for their next campaign. Obama’s resurrection of our individual liberties, however, can still be overruled by a Supreme Court dominated by Chief Justice John Roberts and his conservative allies on the bench—Samuel Alito, Clarence Thomas, and Antonin Scalia—with the uncertain swing vote of Anthony Kennedy.

And here is a crucial difference when considering the two candidates: The new president may well have several vacancies on the High Court to fill during his term, particularly if re-elected. Bill of Rights protector John Paul Stevens is 88, still plays tennis, and long may he do so. Another part of the so-called “liberal” bloc, Ruth Bader Ginsberg, is 75. Stephen Breyer is 69.

David Souter, 68, though expected to join the court’s right wing when George H.W. Bush nominated him, has proved an infuriating disappointment to conservatives. Souter replaced Justice William Brennan, an inspiring believer in the Constitution as a living, evolving guarantor of personal liberties. After retirement, Brennan befriended and influenced his successor. But the ungregarious Souter doesn’t enjoy Washington and its social life: Unlike the other justices, he doesn’t spend his summers teaching in foreign climes, preferring instead his rural New Hampshire home. Brennan enjoyed being the chief dissenter on the Rehnquist court, but if the Roberts court turns even more conservative, Souter might not stay.

John McCain has already given us his models for filling vacancies on the Supreme Court: Roberts, Alito, and the late William Rehnquist.

None of these men displayed much alarm over the Bush-style authoritarianism that has led to the establishment of CIA secret prisons and other “special powers”; the ever-expanding surveillance of Americans at home, including warrantless eavesdropping on our e-mails and phones; and the summary closing of our courts any time the administration invokes the “state secrets” privilege that prevents terrorism suspects from even mounting a defense.

In this month’s National Review Online, Douglas Holtz-Eakin, a primary adviser to John McCain, makes it entirely clear that, as president, McCain would shape the Supreme Court with appointments intended to uphold the vast reach of Bush’s so-called unitary executive.

Appropriately, that letter to the National Review expounding McCain’s views— one that the senator himself has not disavowed—was spread around the world on the front page of the June 6 New York Times by Charlie Savage, who won a Pulitzer Prize for his work in The Boston Globe exposing Bush’s abundant use of “signing statements” to exempt his administration from the laws he’d just signed. To quote Savage’s piece, McCain believes “that the Constitution gave Mr. Bush the power to authorize the National Security Agency to monitor Americans’ international calls and e-mails without warrants, despite a 1978 federal statute that require court oversight of surveillance.” (Emphasis added.)

Barack Obama voted, as a U.S. senator, against the confirmation of Roberts and Alito, saying of the latter that his record revealed “extraordinarily consistent support for the powerful against the powerless” and “for an overreaching federal government against individual rights and liberties.”

Obama, moreover, has been mocked by such conservative columnists as Linda Chavez for having said—in the spirit of Justices Brennan and William O. Douglas—that he would be guided in his judicial nominations by his conviction that “[w]e need somebody who’s got the heart . . . the empathy to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”

In all of the polling of the American electorate and its anxieties and hopes in the coming election, concerns about the Supreme Court and the filling of future vacancies do not rank very high.

But the identities of those nine deciders should be kept very much in mind when you vote. Because on any number of issues—whether you’re worried about winding up in some government database as a “person of interest,” or simply concerned about the future of health care—you won’t escape the power that the Supreme Court has in our lives.

On June 12, the Supreme Court did, however, rebuke both Bush and McCain by declaring the military commissions at Guantánamo unconstitutional!


Supreme Court Obscenity

“Obscenity” is a bag of smoke used to conceal one’s dislikes with regards to aspects of sex.

The late Ralph Ginzburg, First Amendment warrior, in The New York Times, July 7, 2006

There are as many different definitions of obscenity as there are human beings, and they are as unique to the individual as his dreams.

Justice William O. Douglas, a dissenter in the 1966 Supreme Court decision that imprisoned publisher Ralph Ginzburg on federal charges of obscenity

During the reign of J. Edgar Hoover, FBI agents had knocked at my door because of my writings in the Voice about his wholesale violations of the First and Fourth amendments in his pursuit of “un-Americans.” But in the spring of 1962, the imperious knock was by a detective from the office of the Manhattan district attorney.

Packing—but not pointing—a gun, he was summoning me peremptorily downtown to be questioned about an article I had written in the first issue, just out, of Ralph Ginzburg’s hardcover magazine Eros, devoted to multidimensional views of sexuality in paintings, books, and history. I wrote the lead piece, “The Blues of Blacks and Whites,” showing that black blues “speak of sexual love with a spontaneous joy or a wracking sorrow that has been absent from our formal poetry” and in most white popular songs.

At the district attorney’s office, I was asked what I knew of this Ralph Ginzburg and his intentions as a publisher. Citing several Supreme Court First Amendment decisions, I said the questions were improper, and said nothing more. That was the last I heard from the office of the district attorney—this was before the much more libertarian Robert Morgenthau was fortunately elected to that office.

But when the fourth—and as it turned out, last—issue of Eros was published, Ralph Ginzburg was indicted for violating federal anti-obscenity laws by the order of Attorney General Robert Kennedy. (Yes, the Robert Kennedy, who, at the time, had minimal regard for civil liberties.)

When Ginzburg died, at 76, on July 7 of this year, all the obituaries featured his eventual five-to-four loss at the Supreme Court in 1966. And the New York Times obit ended with a quote from Ginzburg, who had been sentenced to five years in prison and a $40,000 fine (he was released after eight months). Said Ginzburg years later—after an active career, following prison, as a publisher and a super news photographer for the New York Post:

“I have always felt that I might have become a major force in American publishing had it not been for my conviction. Instead, I’m just a curious footnote.”

Ralph Ginzburg greatly underestimated his legacy. In his years after prison, he was much more than a “footnote” as a publisher and photographer. But what all the obituaries left out was— as I shall indicate—the impact of his conviction on the Supreme Court itself, which subsequently began to greatly diminish the high court’s concern with obscenity.

The justice who wrote the majority Ginzburg decision was, of all people, William Brennan, until then—and after—a vigorous protector of the First Amendment. Joining him in the wrongful majority were Chief Justice Earl Warren, Tom Clark, Byron White, and Abe Fortas (hardly the most shining moment in their judicial lives). The dissenters were William O. Douglas, Hugo Black, John Harlan, and Potter Stewart. The next morning, the Times editorial said, “[Ginzburg] was strictly an entrepreneur in a disreputable business. . . . Pornographic racketeers have cause to worry.”

Years later, through writing a profile of Justice Brennan for The New Yorker, I got to know him quite well. One day, in his chambers, I asked Brennan if he had any regrets at having sent Ginzburg to prison. The usually amiable Brennan was uncomfortable at the question and snapped, “You haven’t seen that decision quoted by any other judge, have you?”

But in 1973, in Paris Adult Theatre I v.
, Justice Brennan, in dissent, finally decided to admit that it was “hopeless confusion” to try to separate obscenity from other sexually oriented but constitutionally protected speech.

And after writing that 1973 decision, Brennan told me, “If you can’t define it, you can’t prosecute people for it.”

As for the Ginzburg case, I believe Brennan had come to realize, seven years later, what should have been clear to him at the time. Ralph’s conviction had been unconstitutional.

Robert Kennedy’s case against Eros and the two other Ginzburg publications, The Housewife’s Handbook on Selective Promiscuity and the newsletter Liaison, was not based on their content—rather on how he had advertised them through the mails. By emphasizing their “erotic” appeal, Ralph was charged with rousing the “prurient interests” of the ads’ readers. (He had been put behind bars for pandering.)

And Brennan, reading his Ginzburg decision from the bench in 1966, had actually written: “Where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of ‘obscenity’ “—even if the content of the publications, taken as a whole, had enough social or literary value to be protected by the First Amendment.

Since 1973, after Brennan threw up his hands and gave up trying to define obscenity, there have been hardly any significant obscenity cases before the Supreme Court. I am convinced that Brennan, even though it was a dissent, turned the court around, in part because of his embarrassment at what he had done to Ralph. As for why he did it, one of his clerks told me, “When Brennan read the Ginzburg decision from the bench, the back of his neck was turning red. You see, at the time, he had a teenage daughter.”

When Ralph lay dying, he told his wife, Shoshana, “I don’t want any memorial services. They’re for the living. People have to come, they want to, but it’s an imposition. My memorials will be in the obituaries in the press.” And when he was near the end, he said, “Shoshana, don’t waste any time when it’s over, immediately call the Associated Press.”

Ralph was wrong. He will be much more than an obituary footnote in the annals of the First Amendment, from which—as Justice Brennan told me long after sidetracking himself in Ralph’s case—”all our liberties flow.”

So long, Ralph, it was an honor to know you.


Third American Revolution


My God! How little do my countrymen know what precious blessings they are in possession of, and which no other people on earth enjoy.

—Thomas Jefferson

Many Americans do not know even the basics of how their government works, and that is a long-term threat to our democracy. . . . When people do not understand their rights, it is easy for others to take those rights away.

— Michael S. Greco President, American Bar Association April 12, 2006

Supreme Court Justice William Brennan and I once shared a mutual obsession. “How,” he asked me, “can we get the words of the Bill of Rights off the pages and into the very lives of American students?”

At the time, Brennan was the chief dissenter on the Rehnquist Court, and his frustration was mounting on the failure of our schools to teach the guarantees of individual liberties in the Constitution. The last words William Brennan said to me before his death were: “Liberty is a fragile thing. The Framers knew that.” An invincible optimist, Brennan added: “We’ve gotten our liberties back before. We’ll do it again.”

I remembered those words when last week, at the direction of schools chancellor Joel Klein, I was sent a report from the assessment and accountability section of the Department of Education on how the city’s eighth-grade students do on New York State’s basic social studies exam. How much do they know about what distinguishes our system of government—its liberties and rights—from those of all other nations?

In 2004, only 18.7 percent of the eighth-graders passed that exam. Last year, there was an improvement: 31.8 percent passed.

Hardly a cause for rejoicing when George W. Bush continues to expand his powers over Congress, the courts, and the Constitution. As American Bar Association president Michael Greco warns: “If youngsters don’t get a grounding in civic education, it’s much harder for them to be informed citizens when they do become adults”—in a war on terrorism without end.

Talking with Joel Klein, I know he’s fully aware of how much remains to be done to arm the more than a million public school students here with knowledge of their individual liberties against this and future presidents, to become actively involved citizens.

The beginnings he has made can be seen on the NYC Department of Education’s social studies Web page: There are links to sample curricula, courses, activities, and resources for each grade level, as well as professional development exercises for teachers and administrators.

I now have a huge amount of this material. I doubt—and wait to be corrected—that any other public school system in the country provides students with as wide-ranging an arsenal of knowledge to fulfill the foresight of Thomas Jefferson: “Our liberty can never be safe but in the hands of the people themselves.”

I was glad to see a reference in the curricula to the Magna Carta of all public school students, the 1969 Supreme Court ruling in Tinker v. Des Moines School District:

Neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” You can’t learn to be a free citizen without being one in school, since all our liberties follow from the First Amendment.

I have, however, one basic concern about whether the words on the Department of Education’s social studies Web page will actually become part of the lives of this city’s teachers and students.

Among the materials sent me by Joel Klein was a valuable
History for the Future pamphlet called The New York City Council Social Studies Initiative: A Collaboration of Historical Societies, Museums & Educators to Improve Social Studies Education. It contains this warning of the possible failure of this revival of self- defense Americanism:

“In New York City, as elsewhere in the country, many social studies teachers are not formally trained in history and historical methods. This is a result, in part, of the state certification process in which teachers become certified in social studies, not history.” Civics teachers have to know that.

The Second American Revolution started with the passage of the Fourteenth Amendment after the Civil War, allowing Justice Hugo Black, many years later, to get the Supreme Court to incorporate the Bill of Rights into the laws and guarantees of the individual states rather than being limited to the federal Constitution. The Third American Revolution will not take place if the next generations of Americans do not learn and act on the principle that no president or other public official is above the law.

Therefore, as Joel Klein knows, for all the “professional development” parts of his plan, everything depends on the quality of the teaching of civics, and who will monitor that?

As a public service to Joel Klein and the students and teachers of this city, I strongly recommend that he get Bill Gates or others of the wealthy private investors he has recruited for the future of this city’s schools to provide paperback copies to every student, teacher, and administrator of the one book that makes the history of our liberties come fully and vividly alive: Linda Monk’s The Words We Live By: Your Annotated Guide to the Constitution (Hyperion). I know the literature, and have written several such books, but nothing equals the clarity of the writing and exciting research in this illustrated (photographs, prints, original documents) adventure of who we are—and how to stay a free people.

I know it’s a cliché, but this book is hard to put down and connects directly to the present and future debates on such topics as the separation of powers, the CIA’s “black sites,” and the utter lawlessness of our turning into a society under constant surveillance.

The Words We Live By can be ordered at: 800-758-0190. Yale law professor Akhil Reed Amar, author of his own important
America’s Constitution: A Biography (Random House) proclaims Linda Monk’s “a book for ‘We the People’ of all ages!”


John Roberts v. One French Fry

An evening I spent in 1987 at the Association of the Bar of the City of New York taught me a lot about judging judges—very much including the new prospective chief justice of the United States. The speaker was Supreme Court Justice William Brennan, paying tribute to an earlier high-court Justice, Benjamin Cardozo, one of the wisest jurists ever to sit on any bench.

Cardozo, in a lecture, “The Nature of the Judicial Process,” had cited a tradition of judging, said Brennan, in which “the judge was thought to be no more than a legal pharmacist, dispensing the correct rule prescribed for the legal problem presented. . . . Into this formalist conception of law, Cardozo breathed the wisdom of human experience. . . . He rejected the prevailing myth that a judge’s personal values were irrelevant to the decision process.”

Since then, I have taken particular notice of judges who, beneath their black robes, remember they are human beings, like the defendants before them. At the top of that list is U.S. District Court judge Jack Weinstein of Brooklyn, who has been on the bench for 38 years and should have been on the Supreme Court long ago.

For one of many examples of how Weinstein rules “in the interest of justice”—realizing that even if the crime in the case before him is the same, each defendant can be different—see “Judge Finds Woman’s Rehabilitation Grounds to Avoid Prison Term,” on the front page of the August 11 New York Law Journal. Also see Judge Weinstein’s own New York Law Journal article “When Judges Are Asked to Do Evil” (October 28, 2004).

In chilling contrast, let us look at Bush nominee for chief justice John Roberts. When he was a judge, on the District of Columbia Circuit Court of Appeals, he ruled significantly in a 2004 case, Hedgepeth ex rel. Hedgepeth v. Washington Metropolitan Area Transit Authority. As you consider his conception of justice, would you confirm John Roberts as chief justice of the United States, now that he has been nominated by Bush?

The facts of the case are detailed by constitutionalist John Whitehead, president of the Rutherford Institute, which helped provide a lawyer to the mother of the plaintiff: “On October 23, 2000, 12-year-old Ansche Hedgepeth . . . arrived at a Washington, D.C., Metro station to catch the train home.” She put one of the french fries she’d bought in her mouth.

“Immediately, a police officer demanded she put down her french fries and remove her backpack. Although Ansche never resisted or failed to cooperate with the officer, she was told to place her hands behind her back and she was handcuffed.” Ansche was informed she had broken the law against eating in a subway station, and her shoestrings were removed by a policeman, who searched her.

“Led to a police car,” she was “taken to the police station, where she was interrogated, booked, fingerprinted and finally released into her mother’s custody after being detained for several hours.”

The likely future chief justice John Roberts ruled for a unanimous three-judge panel that Ansche’s Fourth Amendment and equal-protection rights had not been violated. Ansche’s mother has pointed out that if an adult had committed the same crime, he or she would have been issued an appearance ticket—not treated like a dangerous felon.

Here is what Judge Roberts said in his decision: “No one is very happy about the events that led to this litigation.” Indeed, he added, this 12-year-old girl “was transported in the windowless rear compartment of a police vehicle to a juvenile processing center. . . . The child was frightened, embarrassed and crying throughout the ordeal.”

However, righteously said John Roberts, revealing the core of his humanity under his black robe: “[The arrest advanced] the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.”

On Fox News Channel’s July 20
Special Report With Brit Hume, Harvard law professor Laurence Tribe—whose books on constitutional law have often been quoted in Supreme Court decisions—addressed John Roberts’s disposition of this flagrant criminal act by 12-year-old Ansche Hedgepeth:

“Saying that the Constitution afforded no protection against a flat rule that allowed no tolerance whatsoever when someone, like a little kid, eats a piece of food in the subway, why didn’t that [decision by John Roberts] violate [the child’s] liberty?”

He was referring to the essential constitutional interest in personal liberty that is particularly embedded in the Bill of Rights. Without those 10 amendments, the Constitution would not have been ratified.

Tribe went on to say, “The country needs to know, not how he will rule in particular cases—God knows, in the next 30 years, cases we can’t even dream of will come before him— but what will be his starting premises about the Constitution?” (Emphasis added.)

As Tribe put it, “If you’re a minor, one french fry and you’re busted, [for the judge to show no discretion] needs some explanation.”

Roberts gave his explanation in his decision. Ansche Hedgepeth was a delinquent! She and her parents must be taught a lesson about our immutable rule of law. “The question before us,” Roberts wrote for the D.C. Circuit Court of Appeals, “is not whether these [Metro system] policies were a bad idea but whether they violated” the Constitution. “We conclude they did not.”

When Justice William Brennan came to the end of his 1987 speech to the Association of the Bar of the City of New York, he had no idea that one day the specter of John Roberts would loom over it. But consider John Roberts as you read this:

“The Framers bequeathed to us a vision of rulers and the ruled united by a sense of their common humanity. . . . We cannot console ourselves with the belief that reliance on formal rules alone is ever sufficient to be faithful to the vision of the Framers.”

And Judge Jack Weinstein, writing of the responsibility of jurists in “When Judges Are Asked to Do Evil,” reminds his colleagues on all our courts: “One path is unacceptable: silent acquiescence. The duty to speak up in protest is required of us, the judges, as of every person in this great country who is called on to do evil.”

How many such protests—in the interest of justice—are likely from a Chief Justice John Roberts on the Supreme Court during the next 30 years or more?


Who Owns the Constitution?

The conscience of this nation is the Constitution. Supreme Court Justice William O. Douglas

On September 17, 1987, I was privileged to be in the audience at the Association of the Bar of the City of New York when Justice William Brennan, who had become the conscience of the Bill of Rights on the high court, gave the 42nd Annual Benjamin N. Cardozo Lecture.

That lecture, still available in the archives of the Association of the Bar of this city, should be read by members of Congress and every law student and law professor in the country—as well as by every judge, from local housing and family courts to the U.S. Supreme Court.

Titled “Reason, Passion, and ‘The Progress of the Law,’ ” Brennan’s emphasis on what he called “the human reality of the judicial process” is even more vital now that the Rehnquist Supreme Court has prioritized economic rights and the rights of individual states over the rights and liberties of individual Americans throughout the country.

Moreover, since George W. Bush is very likely to name the next chief justice of the Supreme Court as well as one or two other replacements before the end of his second term, it is crucial for leaders of the Democratic Party, including future presidential aspirants, to do more than obstruct Bush’s nominees. The Democrats have to tell the country what their criteria are for the Supreme Court and other life-tenured federal judges—instead of mechanically objecting to nominees for being “out of the mainstream.”

In New York, in 1987, Brennan emphasized that the framers of the Constitution made “a sharp break with the past and its assumptions of a natural social hierarchy. They saw government as a contract formed by the individuals of the society with each other, instead of a mutual arrangement between rulers and ruled.”

Therefore, due process—fairness—the basis of our system of justice, “now applied to all officials [very much including judges], commanding them to treat citizens not as subjects, but as fellow human beings. In short, due process requires that the rulers and the ruled acknowledge their common humanity, and that official judgment always remain human judgment.”

During the Warren Court (1953 to 1969), William Brennan was Chief Justice Earl Warren’s closest adviser and confidant (Brennan joined the Court in 1956). This was the Court that created furors by declaring unconstitutional segregation in public schools by individual states and insisting on the federal due process constitutional rights of criminal suspects and prisoners—and in other ways, was often focused on what Brennan called “the essential dignity and worth of each individual.”

In his later years on the Supreme Court, William Brennan was a frequent dissenter because he saw less and less concern—on the Rehnquist Court—for “the essential dignity and worth of each individual.”

I got to know Justice Brennan during many months of researching a profile of him for The New Yorker—and afterward. He never lost his conviction that his passion for individual rights and liberties would eventually be regenerated on the Supreme Court because, he said:

“The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and present needs.”

To give you one example, among many, of how far the Rehnquist Court has departed from “the essential dignity and worth of each individual,” there was its majority ruling in the case of Patricia Garrett (University of Alabama v. Garrett, 2001).

Patricia Garrett, a supervising nurse at the University of Alabama’s medical center in Birmingham, was transferred from her position—and demoted—after having been treated for breast cancer. When she sued, the Rehnquist Supreme Court (5-4) agreed with Alabama, on the basis of states’ rights, that employees of that state are not protected, even under the Americans With Disabilities Act, if they are discriminated against because of a disability.

Arlene Mayerson, directing attorney of the Disability Rights and Education and Defense Fund, said, “The majority decision sets a new low in equal-protection law,” despite the “Fourteenth Amendment guarantee of equal protection of the law.”

Democrats have to alert the citizenry about the radical change by the Rehnquist Court in “federalism”—how power over individual lives is shared between the national and state governments. (See my column last week.) As Howard Gillman, a Supreme Court specialist at the University of Southern California, warns, the issue of federalism has become “the biggest and deepest disagreement about the nature of our constitutional system. . . . At some level, the country will eventually decide which of these two visions will triumph.”

In 1986, Justice Brennan, speaking in New York to the American Bar Association’s Section of Individual Rights and Responsibilities, said:

“We do not yet have justice, equal and practical, for the poor, for members of minority groups, for the criminally accused, for the displaced persons of the technological revolution, for alienated youth, for the urban masses, for the unrepresented consumer—for all, in short, who do not partake of the abundance of American life. . . . The goal of universal equality, freedom, and prosperity is far from won and . . . ugly inequities continue to mar the face of the nation. We are surely nearer the beginning than the end of the struggle.”

Who among the leaders of the Democratic Party is saying that now—when we are still far from the fulfillment of the Fourteenth Amendment’s guarantee of “due process of law” and the right of “any person” to “the equal protection of the laws”?

“A well-instructed people alone can be permanently a free people,” said James Madison, the chief architect of the Bill of Rights. Where are these teachers of the people in the Democratic Party leadership?


The Hidden Supreme Court

On April 28, the Supreme Court of the United States will hear oral arguments in two cases that New York Times reporter David Stout noted are likely to result in rulings of “profound importance, drawing the lines between the powers of courts and the administration and, perhaps, affecting the civil liberties of Americans in ways not yet imagined.” (Emphasis added.)

The justices will hear the cases of two American citizens, Yaser Esam Hamdi and Jose Padilla, who have been held as “enemy combatants” in Defense Department prisons on American soil indefinitely, incommunicado, without charges, and without the continual Sixth Amendment guarantee of access to a lawyer.

Bush’s solicitor general, Theodore Olson, had tried for months to persuade the high court to not even hear these cases, insisting that “the Constitution leaves these core political questions to the president as commander-in-chief. . . . The courts have no jurisdiction . . . to evaluate or second-guess the conduct of the president and the military.”

It was George W. Bush, without going to the courts or to Congress, who, by himself, decided that Hamdi and Padilla, though American citizens, were entitled to none of the fundamental due process rights in the Constitution. No previous president has done this.

If the Supreme Court agrees with George W. Bush—says Judge Barrington Parker Jr. of the Second Circuit Court of Appeals—”we would be effecting a sea change in the constitutional life of this country.” (Emphasis added.)

The third case to be argued before the high court, on April 20, is about whether the noncitizens, our alleged “enemies,” imprisoned by us indefinitely at Guantánamo, Cuba, have any recourse to American civilian courts to rescue them from the legal black hole that Bush’s team has put them in. In that hole, even if they are acquitted by military tribunals under rules already rigged against defendants, they can still be kept in prison.

To prevent Americans, and the rest of the world, from seeing firsthand reports from international human rights groups as to the fairness of the military tribunals at Guantánamo, Brigadier General Thomas Hemingway, a leading adviser in the Office of Military Commissions, sent this letter to Amnesty International, Human Rights Watch, and Human Rights First (formerly the Lawyers Committee for Human Rights)—as reported by Neil Lewis well inside the February 24 New York Times:

“It is expected that limited courtroom seating and other logistical issues will preclude attendance” by these human rights organizations. There will be seats for the news media, but not many reporters have the specialized knowledge to compare the Bush rules for defendants with the Geneva Conventions and other international treaties this country has signed.

But limiting this coverage of the military tribunals, though sneaky, is not as contemptuous of Americans’ vaunted “right to know” as the Supreme Court’s absolute refusal to allow television cameras in the courtroom during the April 28 oral arguments, or any other courtroom at any time.

This historic event concerns not only American citizens Hamdi and Padilla but also any president’s power to call any of us “enemy combatants” and put us away indefinitely. Attorney General John Ashcroft, speaking for the Bush administration, has said that even American streets are “combat zones” in the war on terrorism, allowing American citizens to be busted right here. Jose Padilla was picked up at Chicago’s O’Hare Airport.

Of all American institutions, the Supreme Court is the most distant from the rest of us. The late justice William Brennan told me he wanted its oral arguments open to television because he felt strongly that most Americans had little sense of how this body—which makes decisions affecting millions of us—actually arrives at those decisions.

Brennan pointed out that with few exceptions, most newspapers do not cover the court’s work in depth, and both broadcast and cable television are of even less use. The Internet is limited and uneven.

Seeing the justices during oral arguments—where they are often actually trying to persuade each other in the guise of asking questions of the lawyers before them—provides, as I can attest, insight into their ways of reasoning, their temperament, and their biases. Incredibly, the cold transcripts of these oral arguments—which few Americans ask to see in printed form or on the Internet—do not give the names of the justices asking the questions. It’s as if they were wearing masks.

The late Harry Blackmun was the author of the Court’s decision in Roe v. Wade, which brought him thousands of fiercely denunciatory letters—and a rock thrown through the window of his Washington apartment.

Yet Justice Blackmun took ironic delight, cloaked in anonymity, in joining the outskirts of a crowd of demonstrators near the Supreme Court who were lustily denouncing him for securing the right to abortion.

One morning, I was in Justice Brennan’s chamber shortly after a 1990 survey by the National Law Journal and Lexis that included a question as to how many Americans even knew the names of all the justices. Only 3 percent knew Brennan. (Fifty-nine percent couldn’t name a single justice.)

Chuckling, Brennan reminded me that only 2 percent knew the name of Harry Blackmun. How much do you know about the nine current justices—how and why they got on the Court and their records on civil liberties, civil rights, life and death?

Justice David Souter has said that cameras will come into the Supreme Court only over his dead body. Damn it, it’s not his Court. It’s our Court.

If you want to find out what happens on April 28, your best guide is Linda Greenhouse in The New York Times, who Justice Brennan told me was the most reliable of journalists covering the Court.


‘Liberty Is a Fragile Thing’

After the most savage random attack in history on the people of this city, can the guarantees of the Bill of Rights prevail—freedom of speech and press that even includes advocacy of violence; the protection of each of us against government violations of our privacy, including our right of association with those under suspicion by the authorities; and most basic of all, our right to due process? No arrests without probable cause; no indefinite interrogations behind closed doors, without a lawyer, in the name of “national security.”

All of this sounds rigidly, ingenuously abstract in the face of the thousands of dead and maimed last Tuesday.

As I write this, I have a message on my answering machine from my daughter, Jessica, who runs the Everyday Circus in St. Louis and has three very young children, all of whom are in that circus—and are just as lively and as resilient at home.

“How can I explain this horror to them?” Jessica asks. “How can I explain how people can do this?”

What I’d say to my grandchildren is that there are people everywhere in this world who identify themselves totally with a system of belief—whether political, religious, a poisonous fusion of both, or some other overwhelming transcendence that has become their very reason for being. These vigilantes of faith have unequivocally answered the question of Duke Ellington’s song “What Am I Here For?”

Such people can be of any faith, color, and class. Palestinian suicide-bombers; the self-exhilarating murderous fringe of the Weather Underground here in the “revolutionary” 1960s; John Brown, the abolitionist executioner; and the self-betraying pro-lifers who urge the killing of—and sometimes actually assassinate—doctors who perform abortions.

How can our American government—and how can we—protect ourselves against such “holy” fanatics? Our government already has the ingenious technology to subvert what remains of our privacy. But that very technology, financed by us, could have—and should have—been used to penetrate the extensive and expensive preparations for the remarkably efficient coordination of last Tuesday’s terrorism.

But despite all the resources of the CIA and FBI, as well as the National Security Agency’s “Echelon” project that monitors, by satellite, communications all over the world, there is a systemic failure of our intelligence operations. Surely something can be done about this. The Evil Empire is no longer one nation, the Soviet Union. It is a peripatetic, virulent state of mind.

Will America never be the same after September 11? I would phrase the question differently. Will America again be so captured by fear as to cast a net of suspicion over growing numbers of its own citizens?

Last Tuesday, a friend, an inveterate civil libertarian, called me as broken bodies were still being placed on stretchers.

“This is going to cause a surge by government—local, state, and federal—to shred the Bill of Rights,” he said. “And it will be cheered by an enthusiastic, indignant public.”

If he’s right, and American history would indicate he is, the relatively few uncompromising civil libertarians among us will again be regarded with contempt and continuous suspicion by both the authorities and the populace—as took place during the “Red Scare” of 1919 and the 1920s, when J. Edgar Hoover first emerged as the special assistant to Attorney General A. Mitchell Palmer, who put him in charge of the summary deportation of legions of alleged radicals, subversives, and “Bolsheviks.” As a reward, Hoover rose, in 1924, to be the director of the Justice Department’s Bureau of Investigation, which became, 11 years later, the committed mugger of the Bill of Rights: the FBI.

Continued terrorism could also easily return us to the era of the junior senator from Wisconsin, Joe McCarthy, who rode high and recklessly on the esteem of much of the citizenry—and a significant portion of the press. Even the usually dispassionate Webster’s American Biographies notes that “his slanderous attacks on persons who were not only innocent but defenseless gave rise to the term ‘McCarthyism’—referring to such tactics.”

It could happen here again, especially with the Left so riven by its own wars of identity politics—and meager regard for its internal opponents’ free speech—that it might be difficult to organize a united front against resurgent McCarthyism.

Meanwhile, a September 12 Washington Post poll reveals: “Two in three were willing to surrender some of the liberties we have in this country to crack down on terrorism.”

Keep in mind, too, that the present attorney general is John Ashcroft, and also that this is the Rehnquist Supreme Court, with liberals Stephen Breyer and Ruth Bader Ginsburg hardly having the same fierce devotion to the Bill of Rights as William O. Douglas, William Brennan, and Thurgood Marshall. (John Paul Stevens sometimes comes close.)

Unless a band of true constitutionalists can beat back a fear-driven, popular war on free speech, free press, privacy, and due process, under the banner of national security, much of America will ignore the warning of Supreme Court Justice Anthony Kennedy: “The Constitution needs renewal and understanding each generation, or it’s not going to last.”

Already, as the First Amendment Center’s State of the First Amendment Survey 2001 shows, the majority of Americans believe that the government should hold the press in check and that public speech which offends racial or religious groups should not be permitted.

Moreover, only 53 percent strongly agree that “newspapers should be allowed to publish freely without government approval of a story,” and only 57 percent agree that “newspapers should be allowed to criticize public officials.”

The late Justice William Brennan—who became a dissenter for liberty when the Burger and Rehnquist courts put him in the minority—was an optimist about the future of freedom here. He believed, he told me, that eventually the Supreme Court would regenerate the Bill of Rights.

Yet he had his moments of fear for what could happen. In one of our last conversations, he said to me, “Look, pal, we’ve always known—the framers knew—that liberty is a fragile thing.”

And William O. Douglas once reminded a group of young lawyers that the guarantees of the Bill of Rights are “not self-executing.” We have to continually make them work. “As nightfall does not come all at once,” Douglas added, “neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air—however slight—lest we become unwitting victims of darkness.”

Already, Arab Americans among us are being demonized and reviled—not by the government but by fellow citizens on the streets of New York. Their liberty has become fragile.