How to Read the Polls

The latest polls show that Clinton and Trump are now in a statistical dead heat with a small edge to Trump. The polls also indicate that Sanders would defeat Trump handily, by as much as 15 percent points. I am not a statistician but it would seem the obvious explanation for this anomalous projection is that many Sanders supporters when polled, are either not expressing a preference as between Clinton and Trump or are favoring Trump in order to enhance the status of their own candidate in his head to head match up with Trump. If that is so, the compelling conclusion is that a large number of these Sanders supporters will ultimately vote for Clinton in the general election (if they vote at all) rather than risk a Trump presidency. Thus, Trump's apparent strength in the polls, vis a vis Clinton, is probably illusory. Of course, things may turn out very differently if the Libertarian Party ticket includes William Weld, a candidate likely to have strong appeal to socially progressive and fiscally conservative voters.

A Flexible Constitution

The single most urgent and overriding function of our Constitution is to insure that the rights of those who lack the votes to enact policy are not wrongfully diminished or debased because of their minority status. That protective imperative is timeless and should not be subject to changing mores, concepts or language.

But to the extent that the Constitution also serves as a blueprint for governance, it is foolish and unhelpful to worship words or concepts crafted in another time to deal with a very different world. Many of the Founders had perspectives about slavery, race, punishment, women's rights and social relationships that are completely out of step with modern thought and philosophy. Because they knew change was inevitable, and necessary, they bequeathed to their posterity a document that can live, breathe and adapt.

To insist that today's legal and moral issues must be resolved only by reference to the Constitution's 18th century language, or to the meaning attributed to such language by its contemporary populace, is neither justified nor forward looking. Such an approach merely straitjackets our society and inhibits its continued growth and world leadership

Obama,Syria and Asylum

Peter Wehner, in his Op-Ed article (Nov.28,2015, p.A19), attempts to create the false impression of fair-mindedness by referring, in passing, to Republican shortcomings as a contributing factor to the sorry state of affairs in Syria. Yet, the principal thrust of his essay is to perpetuate the Republican libel that the President, by choice, has been historically polarizing.
Wehner chooses to ignore the unprecedented hostility which his party has directed at Obama even before he assumed office. Any attempt by the President at compromise was almost unanimously rejected by a party unified in its common goal of obstruction, even if that meant voting against programs Republicans had previously proposed or embraced.
And when the President stated that he was prepared to enforce by arms his "red line" ultimatum but bent to the outcry that only Congress could declare war, Republicans blocked congressional action, effectively repudiating Obama's authority to act.
Yes, there are legitimate concerns about terrorists posing as refugees but the President's upbraiding of Republican opposition to asylum must be seen as the exasperated response of one who has endured seven years of unyielding and unreasonable opposition at every turn.

TO THE EDITOR:

Unquestionably, it is scandalous to hold suspects in jail pending trial simply because they are too poor to make bail and Chief Judge Lippman is to be commended for addressing the issue in his final months in office (NYT Oct.3, Page 22).

However, the solution to the problem does not require new laws or even a new policy. It merely calls for judges to better use their existing discretion to release defendants on their own recognizance when it is clear that they are not a flight risk.

Judges are already provided with data in each case documenting a defendant's community ties, thus enabling the court  to assess the likelihood that he will return for trial.

As a criminal court judge in Manhattan I frequently released defendants pre-trial without bail, even over the objection of prosecutors, when it was clear, as in many if not most cases, that requiring cash bail or a bond was not warranted. My willingness to utilize parole was rooted, perhaps, in the lessons learned from my participation as a law student in 1961 in the Manhattan Bail Project conducted by the newly-formed Vera Foundation, which demonstrated that accused persons with ties to their community were more likely to return to court then those released on bail.

Judges can, and should, be making far greater use of their existing authority to release defendants pre-trial. It is the humane and sensible thing to do and will ensure that poor persons accused of minor crimes do not languish in jail awaiting trial.

Gerald Harris

Topless in Times Square a Legal View

The "problem"  of bare-breasted women soliciting tips in Times Square is just one part of a larger panorama which includes naked cowboys, action heroes and muppet characters saturating the pedestrian plazas established as oases in the traffic-congested "Cross-roads of the World". City officials are scratching their heads and wringing their hands over how to address this phenomena without invading the civil rights or constitutional protections of these self-professed performers.

The first issue to be determined is whether the presence and actions of these costumed accosters truly is a problem. After all, Times Square's appeal has always been its tawdry character which for decades has drawn, titillated and frightened tourists. On the other hand, local merchants claim that the aggressive nature or erotic appearance of these panhandlers deters visitors, particularly families with young children, and damages their business. It is for the City Council, after careful study and extensive public hearings, to determine the kind of neighborhood that best serves the City's overall interests.

Second, the criminal justice system is not the appropriate instrument for resolving this patently societal tension. Arresting and prosecuting the actors merely implicates knotty constitutional and legal issues premised primarily upon protection of freedom of speech and would require satisfying the high bar of proof beyond a reasonable doubt.

Instead, the City Council could conclude that commercial activity within the pedestrian plazas is inimical to their primary purpose of rest and reflection and adopt an ordinance which designates those areas as commerce-free zones. It would not be a stretch to find that posing with tourists for tips is a commercial endeavor and courts have regularly upheld limitations on the use of park space or solicitations on subways. An injunction could be sought in civil court barring persons from engaging in the proscribed conduct including presentation of so-called performance art.

The Romney Plan

 

So, now we have it. Romney’s plan to save the economy and restore America’s greatness. Every economic indicator shows, and most experts agree, that the major impediment to recovery and job creation is lack of consumer confidence. That lost confidence manifests itself in reduced spending which leads business owners to defer expansion and suppress production.

Romney’s solution; lower taxes on the wealthiest while ending the tax deductions that most benefit the middle-class, such as mortgage interest, local tax payments child care expenses, etc. The result, more money in the hands of the top 2%, whose expenditures least impact the economy and higher taxes and less spending money for the middle-class, whose purchasing power most influences the economy.

In furtherance of this strategy, Romney would slash the programs that enable poor Americans to have and spend money, thus drying up their contribution to the economy even as it puts their well-being at the mercy of private and religious charities.

Romney’s plan is to remove regulation and put Wall Street and the Big Banks back in the business of pursuing enormous gain by issuing exotic securities and taking huge gambles on transactions that have no economic justification and add nothing to the creation of goods or services.

Romney’s economic vision is that reduced government spending, on roads, bridges and infrastructure and on the maintenance of a social safety net, will somehow be offset by increased spending on armies and armaments. In his universe the deficit will not be increased by the revenue lost in giving tax reductions to the wealthiest, by lowering or ending taxes on capital gains and by excusing corporations from the payment of taxes. Instead, the deficit will be magically reduced by greater economic activity and by closing the “loop-holes” that most experts agree will serve only to increase the tax burden on the rapidly disappearing middle-class.

And American greatness around the world will be restored and enhanced by substituting threats for negotiations, bluster for reason and the restoration of cold-war tensions with Russia and China.

So let the oceans rise and the climate deteriorate. The important work is to return America to those days of yesteryear when government did not grant civil and voting rights ( only God and Nature did ), women’s rights and choices rested in the capable hands of mostly male legislatures, unions were weak or non-existent, robber barons ruled and every hand could hold a gun.

Gerald Harris

August 31, 2012

 

 

Let Them Eat Broccoli

 

 

It is hard to comprehend how jurists who are presumably learned and sophisticated, can subscribe to a line of argument that is so childish and simplistic.

The health care mandate is not about forcing people to eat broccoli or join a gym. Those are activities that may or may not affect health and, therefore, the cost of providing health care. Mandatory insurance doesn’t mean people will be healthier – it simply means that when they inevitably become ill, the burden of paying for their care will not be shifted to others.

The mandate is not “ creating commerce in order to regulate it “. The commerce being regulated is the health care system, an existing industry. That industry is impacted by the decisions made by individuals, to buy or not to buy health insurance. It is a given, and inevitable, that every person in this country will, at some point in their life, require medical assistance because people become ill, are injured and ultimately die. Our society will inevitably respond to those who are injured, ill or dying and attempt to cure illness, repair injury and save or prolong life. There is a cost for such intervention which will be paid by patients with adequate funds, or by insurers, or by Society at large ( in the case of those who have no insurance and are unable to pay for care ).

So, unlike abstention from broccoli, the failure to buy insurance will shift the burden of paying for medical care from the recipient to the provider or the taxpayer. Congress has determined there are at least 43 million uninsured, potential cost-shifters and it has the power to impose requirements that prevent such an unfair imbalance from destabilizing the interstate health care industry.

 

Gerald Harris

March 27, 2012