"Still a work in progress" - PITTSFIELD, Massachusetts
By Frank Jakubowicz, The Berkshire Eagle, Op-Ed
Friday, July 4, 2008
This nation had a unique beginning. And it is important on this anniversary of that founding to understand the point made by American historian Gordon S. Wood.
This nation was not founded based on a common ethnicity, language, or religion as were the other countries at the time. It was founded based on a set of ideal values and beliefs espoused by a group of men who declared themselves and their fellow inhabitants of this land independent from one of those other countries. This holiday is a good time to reflect on these values and beliefs and what we the people have done with them since.
One remarkable thing is the longevity and the adaptability of the words in the Constitution adopted 221 years ago to establish a national government, in the early first 10 amendments (the Bill of Rights) adopted 219 years ago to establish the rights of the people under this government, and in the three important post-Civil War amendments adopted some 143 years ago to abolish slavery (the 13th), protecting the rights of all citizens against state laws (the 14th), and prohibiting discrimination because of race and color (the 15th) to enshrine the spirit of those values and beliefs as the supreme law of this nation.
The establishment of this nation is not just one event that occurred on July 4, 1776. It is a work in progress that continues. It was not only the Founders who were involved in the building of this country, but the many people who to this day as advocates, protesters, dissenters and lobbyists have made this country what it is.
At first, the high-mindedness of the Founders caused them to form a government for "We the People," as stated in the preamble to the Constitution. But the Founders initially thought that their class of intellectual, propertied, white men were best suited to run this government, and to this end, they initially decided to insulate most of the high government officials from the direct vote of the people. Senators were chosen by state legislatures to serve long terms, the president was chosen by state electors, and both these branches selected the justices to the third branch. The Founders' state counterparts limited voting to white men with property.
Eventually the people, in the spirit of the Founders' government by the people, succeeded in 1913 to amend the Constitution for the direct election of senators by the people. Over time, the people forced the voting process to be open to all Americans.
During the debates to ratify the Constitution, the people were concerned over the lack in that document of their "unalienable Rights ... (of) Life, Liberty and the pursuit of Happiness" as stated in the Declaration of Independence. This caused the Founders to respond with the Bill of Rights amendment.
Still later, as a result of a rebellion over slavery, three important amendments were adopted to protect the newly freed slaves in the spirit of those words in the Declaration of Independence, "that all men are created equal." But it took freedom marches, sit-ins, and boycotts by the people, including the giving of some of their lives, to finally demonstrate that the language of the Constitution should be understood to prohibit segregation and discrimination based on race and color.
If anyone doubts that translating the meaning of the language in the Constitution is a continuous process, they should consider some current events. President George W. Bush claims that as the "commander-in-chief" of the armed forces under the Constitution he is above the law as a self-proclaimed war-time president. He claims to have the power: to declare war (a power explicitly given to Congress in the Constitution), to incarcerate individuals without trial (a denial of habeas corpus), to torture individuals (the Constitution makes treaties like the Geneva Convention the supreme law of the land), and to wiretap without court approval (a violation of a federal law).
Additionally he claims that the vesting of "(t)he executive power" under the Constitution in the president means that he has an absolute right to run the executive agencies of government as he sees fit regardless of any congressional laws to the contrary. In this instance the people will not have to contest these claims by Bush. He cannot run for reelection because of the Constitutional change to limit presidential terms to two which the people adopted in emulation of the wise and insightful precedent set by George Washington.
My point is that the American revolutionaries with their Declaration of Independence and the Founders with their Constitution are not the only individuals and documents to be celebrated today. We owe them a great deal and they should be celebrated today. They formed a country based on ideal values and beliefs, and they did it by using Constitutional language in a spirit that allows the adaptation of those words in a meaningfully way to modern times without changing the words and the basic structure of the government.
But the people's role in building this nation should also be celebrated on this day. The Constitution is not self-executing. The Founders left it for the people to put the Constitution's words and spirit into action as the supreme law governing this nation. And the people in that role in many instances had to resort to difficult actions, including a civil war, bloody anti-segregation demonstrations, massive peaceful protests, and the like, to resolve many important public issues in the process of building our nation.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"If you like Bush . . ." - PITTSFIELD, Massachusetts
By Robert F. Jakubowicz, The Berkshire Eagle, Op-Ed
Friday, June 27, 2008
"(W)henever the people are well informed they can be trusted with their own government; that whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights." — Thomas Jefferson.
Can we rely on enough well-informed people to begin to set things right in America with the upcoming presidential election to change the policies of the Bush administration that have taken this country so far wrong? This is the underlying question raised by Professor Rick Shenkman, in his new book, "Just How Stupid Are We?," which was a thought-provoking Father's Day gift from my daughter Maryann.
Shenkman has no definitive answer. But he wants to make this question a part of the everyday public debate about politics. He thinks that many Americans are "pretty stupid" about understanding political issues and electing politicians. But so far, Shenkman says we have muddled through the consequences of such public ignorance because of our superpower position. He worries that if this country continues on this path, we are likely soon to find ourselves in a terrible situation.
Will the election of John McCain as president hasten the country down such a path? Consider the issue of Iraq. The media still shows its undue influence by the Bush administration by calling it the "war" in Iraq. Actually it's an issue of a prolonged American occupation of Iraq since the war against Saddam ended four years ago. Each of these words connotes different ideas.
President George W. Bush and McCain call it a "war" to play the political fear card of Al-Qaida. Bush conned the people into the Iraq mess. McCain is trying to con the people that our continued presence in Iraq, no matter how long, is necessary for a victory against terrorists. To paraphrase the old Chinese proverb: Con me once on Iraq, shame on you Bush. But if I allow McCain to con me twice on Iraq, shame on me.
In fact, Al-Qaida now has little influence in Iraq, and the latest fighting had been mainly by Sunni and Shia militias between themselves and as insurgents against our occupation. Currently the U.S. military, according to British journalist Patrick Cockburn, has come up with a "quick fix" of buying today's relative peace in Iraq by paying the gunmen of both militias.
Clearly this is not a long-term fix for an accommodation by the Sunni, Shia and Kurd populations for a peaceful and stable Iraq. McCain's campaign vow to in effect continue Bush's Iraq policy should be sufficient for enough informed voters to begin to set the wrong in Iraq to right by not voting for him.
The media shows the Bush influence by still reporting the debate over funding the occupation of Iraq as an issue of supporting the troops. In fact, it's now a question of whether we are squandering billions of dollars on an unnecessary occupation of Iraq. Again, the use of both these phrases connotes different ideas.
One is the Bush-cum-McCain political con of smearing critics of the funding as unpatriotic for not supporting the troops. The other is the common sense inquiry about the wisdom of spending this money that the government must borrow and which is to be paid by future generations of Americans. McCain, like Bush, does not see the need for raising taxes to pay for the Iraq adventure. In fact, McCain has flip-flopped on his earlier opposition to making Bush's tax cuts permanent. He now says that to allow them to lapse would in effect be raising taxes. Can anyone doubt this obvious and cynical pandering to the anti-tax crowd.
McCain thinks our economy, notwithstanding his admission that it is a subject he does not fully understand, is fundamentally sound. Every time he has been asked the question about his policy to deal with the loss of good-paying American jobs, the rising cost of just about everything, an ever-growing federal deficit, a growing number of mortgage foreclosures in a shattered real estate market, a growing economic gap between classes of Americans, and the like, his inevitable first response is "cut taxes." His wife, in a recent television interview about what kind of first lady she would be, said among other things that she would push the idea of volunteerism to help needy Americans because government programs are not the answer to these problems.
This past week, McCain has stooped to a new low in his now role of a political panderer. This time it's the anti-liberal judge and build-more-Guantanamos crowd. As a former POW, he should be aware of the evils of torture and prolonged incarceration. Yet, he called the recent Supreme Court's decision that simply allows the Guantanamo prisoners the right to appear before a federal judge to determine if there is sufficient evidence to hold them, the "worst decision in the history of this country." Actually, this decision confirms one of the rule of law cornerstones of the freedom and democracy that both Bush and McCain say they are trying to establish in Iraq.
Barack Obama may not be able to accomplish all that is necessary to change American policy for the better, but a well informed electorate should give him the opportunity to try because McCain won't.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"Negative about negative campaigns"
By Robert "Frank" Jakubowicz, The Berkshire Eagle, Op-Ed, Sunday, November 09, 2008
Negative political campaigning is one of the most divisive, abusive, demeaning and cynical aspects of our political system. And hopefully this past election has sounded the death knell for its future extensive use in electoral politics.
John McCain's campaign held onto this tactic to the end. On Election Day, his campaign and supporters ran national television ads inferentially questioning Barack Obama's patriotism. The ad showed a picture of Obama and the Rev. Jeremiah Wright with a background sound of the latter damning America. And in Florida, there were Robocalls in Spanish on election day that Fidel Castro and his brother supported Obama.
Meanwhile, Republican Elizabeth Dole, in her bid for re-election to the Senate, ran television ads in North Carolina inferring that her opponent, Kay Hagan, was not a Christian by falsely linking her to a "Godless organization." The losses in both of these high profile elections, as well as other races, should now raise serious questions about the heretofore political wisdom that negative campaigning works.
Obama's campaign to its credit did not stoop to the same type of tactics. Some McCain supporters likened Obama's criticisms of McCain's proposals to negative campaigning, but that involved differing opinions over the accuracy and consequences of McCain's plans and programs. There may have been some misinformation or inaccuracy on Obama's side in criticizing McCain's proposals, but this was not the same as the demeaning personal attacks against Obama infering that he was somehow different and even un-American because of his past associations and the ridiculous personal attacks that he would transform America into a socialist state. This aversion by the Obama campaign to the overt negative campaigning by the McCain side, presented the voters with a rather clear cut choice of a candidate running on the issues.
Obama promised to change domestic policy by assisting the bulk of Americans in the middle and poorer classes with tax cuts, effective social programs paid for in part by taxing the wealthy to pay a fairer share of taxes; fair pay for workers; sensible regulation of the market place, weaning America away from over dependence on oil; and to change the nation's foreign policy by ending the occupation of Iraq, stabilizing Afghanistan and Pakistan, and diplomatically engaging friend and foe internationally to keep the peace, protect the environment, and improve living conditions all over the world.
This was as a close as we have come to a classic case of the ideal of an American election and its consequences in recent times. That is, a candidate actually running on the real issues of the day and essentially winning on the basis of his position on those issue. Hopefully politicians and political consultants will take note of this and this will be a harbinger for more issue-oriented future elections.
Negative campaigning has been part of electoral politics ever since political factions have been involved in our elections. This tactic was used in the first contested presidential reelection bid in the nation. There was a full blown negative campaign waged on both sides in that re-election bid by John Adams against his opponent Thomas Jefferson. Elizabeth Dole was not the first politician to use the Godless charge against her opponent. This same charge was used against Jefferson by Adams supporters more than 200 years ago.
The Founders of this country established a Constitution that on paper was a blueprint for their ideal of a government ruled by elected officials. In reality this had to be implemented by human beings with all of their frailties, and one of these baser traits is an inclination by individuals who are competing over something to belittle each other. This runs from competing for someone's affection or friendship to running for political office. It involves the use of negativity about the other person based on gossip, innuendo, and the like. This is what drove the negative campaign between Adams and Jefferson. They both competed for the same prize and belittled each other to gain it. Politically this negative attack of opponents has survived in varying degrees to this day.
Socially, there has been a long effort to curb individuals from making false and damaging charges about fellow individuals. The law has long recognized legal actions for slander and libel. Most religions decry such activity. Ever since humans stopped being nomads and settled in social communities, most of their descendants have found that avoiding such negativity about others works for the betterment of all.
It is time to make politicians and their handlers grow up andconduct positive issue campaigns because it benefits candidates and the country. The invasive problem of negative campaigning is that it continues to contribute to the divisiveness in this country. I am sure that many of the people who did not vote for Obama still question his patriotism and worry about his transformation of this country into a socialist state or forcing them to share their wealth, all of which is just silliness brought on by McCain's negative campaigning.
Hopefully Obama's governance will dispel such notions and go a long way in uniting this country, which incidentally was another one of his positive campaign issues.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"Protect program for mentally ill"
The Berkshire Eagle - Letters, Saturday, November 15, 2008
Robert F. Jakubowicz wrote a nice column about negative campaigns (Nov. 9) in which he said that, "The law has long recognized legal actions for slander and libel." As a lawyer, he must feel frustrated that this goes on all the time.
The mentally ill also know the frustrations of being slandered and not believed. Mentally ill people are slandered all the time and no one really cares. Just because we are generally poor, walk instead of drive, go to food banks and programs, we are made fun of, or worse.
Now that Barack Obama is president-elect, the black citizen feels empowered. Will he empower us as well? Will the doors of employment open up to us, or will we continue to hang on by a thread while programs for the ill are slashed and cut in favor of what? More institutions, more street people and crime, more suicide and alcoholism?
Budget cuts threaten a day program in Pittsfield called "Transitions." It is home to many good people, and if it ends, these people, including myself, will have nowhere to go. Mental illness is a bona fide illness. No one deserves to be homeless whether they are diabetic or have a psychiatric disability. Here's hoping that Barack Obama, lawyers like Mr. Jakubowicz and grassroots groups can save programs like "Transitions" from being bulldozed, and that the mentally ill people of our community are saved from being cut adrift.
"Absolute power corrupts absolutely"
By Robert F. Jakubowicz, Op-Ed, The Berkshire Eagle, Tuesday, January 27, 2009
The resignation under a cloud of impropriety by Salvatore F. DiMasi, as speaker of the Massachusetts House, and the federal indictment of Joseph Bruno, the former New York Senate majority leader, underscore the problem with the outmoded, autocratic rule that remains in a handful of state legislatures. The common political connection between DiMasi and Bruno is the extraordinary power to control and influence legislative business that has been ceded to the offices of such leaders by the members of these legislatures. As a result, such leaders are magnets for those seeking legislative favors, government investigators searching for evidence of legislative wrongdoing, and the media.
The political foundation of our national and state legislative form of government was the retention of political power by the people to be exercised by their elected representatives on an equal basis. In other words, no one representative was to have more power than any other representative to conduct legislative business. The federal and state constitutions simply provide that each legislative body shall choose their officers. The obvious point of this was to ensure orderly, parliamentary-like meetings presided over by a chairperson and other officers to oversee the recording of the business conducted and the like.
But unfortunately over the years, both Congress and state legislatures have fallen prey to the obsession with political power by individual members. As a result, legislative officers have been able to amass unequal legislative power. This is not what was intended by the founders of this country. Simply put, why should one representative like DiMasi or a former senator like Bruno exercise any more power than any other lawmaker in their respective bodies? Each of them represents the same number of constituents.
Likewise, on the federal level, why should Nancy Pelosi, the speaker of the House, have any more power than any other congressman? She and her colleagues represent the same number of constituents. No one group of an equal number of voters were to be represented by an elected representative more powerful than the other representatives.
The modern trend among a majority of state legislatures has been to make their bodies more democratic and open with full membership participation and to rid themselves of autocratic rule. But this trend has not yet appeared in states like Massachusetts and New York.
In an open, democratic and full membership participation legislature, the business of repealing the Massachusetts ticket scalping law would be the responsibility of the entire House of Representatives. But an alleged quid pro quo problem reported by the Boston media over this legislation is directed only at DiMasi. Why? The answer is his power in the House.
DiMasi has been the subject of a string of stories by the Boston media that raise questions about his office and his friends being involved in favored legislative treatment for ticket selling agencies in return for payments to his friends. DiMasi's friend, former campaign manager, and personal accountant Richard Vitale received a "consulting" fee for meeting with a ticket broker association about repealing the state ticket scalping law which resulted in a fast track approval, allegedly engineered by DiMasi, of such a repeal measure in the House.
In another instance Vitale received $600,000, and Steve Topazio, who shares a Boston law office space with DiMasi, received $125,000 from Cognos ULC, a software company that received $17.5 million in state contracts that DiMasi had allegedly lobbied for with the governor's office. Again the investigation is based on DiMasi's power to practically unilaterally speak for the entire House in matters such as these contracts.
In Bruno's case, it is essentially the same story. He is being accused of using his past powerful legislative position to allegedly help businesses to obtain state contracts and that he received consulting fees from them. The difference in Bruno's case is that he is alleged to have profited directly while in DiMasi's case it is his friends and associates. This has caused the federal indictment of Bruno, while only DiMasi's friend Vitale has been charged with a crime so far. However, state and federal authorities are still investigating the matter relating to DiMasi in an effort to tie his actions to the payments received by his friends.
Before the report of the resignation by DiMasi, two members of his leadership team were reportedly lobbying House members for their votes to succeed DiMasi. One is Robert A. DeLeo, the chair of the House Ways and Means committee, and the other is majority leader John H. Rogers. Neither of them has shown any inclination to change the system of a powerful speaker's office. Both of them have been committed players in the Statehouse game of support me for speaker and in return you will be part of the leadership team with all the political perks that go with that status. So don't expect any change in the system if either of them is elected speaker.
The resignation of the two former speakers, Charles Flaherty and Thomas Finneran, because of improper and unlawful actions, and the now resignation of DiMasi under a cloud clearly makes the case that the office of speaker should be reformed to make it one of a presiding officer over legislative sessions with no more power than held by each lawmaker.
Robert "Frank" Jakubowicz is a Pittsfield lawyer, former Pittsfield state representative and regular Eagle contributor.
Both Congress and state legislatures have fallen prey to the obsession with political power by individual members.
"Recipe for rancor"
By Robert F. Jakubowicz, Op-Ed, The Berkshire Eagle, Thursday, February 12, 2009
President Obama stated the obvious when he said: "The American people did not send us to Washington to get stuck in partisan posturing . . . they sent us with a mandate for change, and the expectation that we would act." So why did the Senate get stuck in party bickering and delay in carrying out this mandate with its foot-dragging over passing Obama's economic stimulus bill?
The fundamental blame lies both with the Founding Fathers, who created the Senate in the Constitution to blunt the political power of a democratic majority of the people, and with the early American politicians who created the two major political parties, not mentioned in that document, which has turned our governmental system into one beset by divisive party partisanship.
The Founders were frightened by the specter of rule by a democratic majority of Americans. James Madison was worried that a time would come when the mass of Americans without land or other property could seize control of the government. According to American historian Charles A. Beard, the Founders spent several restless days of trying to figure out how to provide protection in the Constitution for the propertied class. They considered placing voting restrictions in that document, but, Beard said, they opted to do it another way to dissolve "the energy of the democratic majority" of Americans by dividing the power of government among the three branches they created.
Beard's explanation makes sense in view of the way the Senate handled Obama's stimulus package. The House of Representatives, according to Alexander Hamilton, was created to give "the poorer order of men a hearing in the government." The Founders anticipated that this body could be subject to be stampeded into drastic action by the people, and in the case of the economic stimulus measure, that is what happened. The House reflected the people's mood for change by quickly passing the economic stimulus measure. But the Founders anticipated the possibility of such quick and drastic action and decided to guard against it by placing a tough obstacle in the path of any such legislation by creating the Senate.
The Founders expected that a safe majority of long-serving, conservative senators insulated from the direct vote of the people would work to delay, dilute or dismiss such action by the House. Senators originally were selected by state legislatures until a 1913 constitutional amendment.
And only one-third of the senators, who served terms three times longer that House members, were up for reelection at any one time. Under such a senatorial electoral system, the people were only able to vote for one-third of such body in the last election. And this resulted in the election of only a slim majority of Democrats in the Senate, which allowed the Republicans to stall the economic stimulus bill.
Against this legislature so divided against itself, the Founders placed a president, elected by electors and not the people directly, with a veto power as a further obstacle to restrain the power of the mass of Americans. For example, by 2007 a majority of Americans were tired of President Bush's policies and the inaction of his GOP colleagues who dominated Congress. They elected a Democratic majority in the House, but they could not do the same in the Senate because only a fraction of the senators were up for reelection. As a result, Democrats only had a one vote margin in the Senate. The House passed a measure for the removal of our troops from Iraq. The Republicans initially were able to block this measure in the Senate, but eventually agreed to a compromise. Bush, however, exercised his veto power and killed this legislative attempt to bring the troops home which was supported by a majority of Americans.
Congressional Republicans claim their opposition to Obama's stimulus measure is based on their philosophical differences with the Democrats. But there is an equally if not more dominant reason for their opposition, namely, out-and-out political partisanship. The Founders were very concerned with such divisiveness that would be caused by political parties. They made no provision in the Constitution for parties. They feared the divisive nature of parties as well as the country dividing along party lines. Thomas Jefferson said that "if (he) could not go to heaven but with a party, (he) would not go there.
After George Washington, there were no comparable individuals with his national stature to simply stand for election. And those who sought to succeed him as president found they had to drop their philosophical opposition to political parties and form political factions, the forerunners of our parties, to garner enough electoral votes beyond their own states. These political parties engaged in bitter divisive, partisanship fights from there inception to the present. The fears of the Founders were realized as this partisanship rancor became well-established over the years as not only an integral part of our two-party system, but as the main reason for the division of this country along party lines.
The public reasons of pork, too much spending, not enough tax cuts and the like given by the Republican senators who oppose Obama's stimulus package are a political smoke screen for the main reason, namely, bare-knuckled partisanship. One political commentator on television recently described this partisanship as one whereby the opposition party is simply intent on "blowing up" the matter under consideration.
Robert "Frank" Jakubowicz a Pittsfield lawyer is a regular Eagle contributor
"Edge of dictatorship"
By Robert F. Jakubowicz - PITTSFIELD, Massachusetts
Saturday, March 14, 2009
Two years ago, my son Peter gave me a book entitled "The End of America." Its author, Naomi Wolf, issued a warning of how a dictator could take over our country "by invoking emergency decrees to close down civil liberties; creating military tribunals; and criminalizing dissent." Wolf described the "echoes" of such events in America. She made a plausible case that it could happen here. But when I read the book, I did not think so.
I had second thoughts when I found out that the groundwork was being laid for it to happen here by the "torture memos" written by John Yoo, a Justice Department lawyer in the Office of Legal Counsel (OCL) for former President George W. Bush. And I was shocked that all it would take is a government lawyer's made-to-order legal opinion, no matter how flawed, to a president bent on exercising dictatorial powers.
John Dean, a former counsel to President Nixon, recently referred to such legal opinions as "corporate lawyer opinions." Those are written for corporate heads who order them from their lawyers to fit a corporate decision and never mind the legal fine points.
Bush and members of his administration decided to use torture, including waterboarding, which in an Orwellian euphemism they called an "enhanced" method of interrogating suspected terrorists to obtain information. They also sought a legal opinion from their Justice Department's OLC to cover themselves from criminal prosecution.
The U.S. criminalizes acts of torture inside the country by state and federal criminal laws for assault, battery, murder, and so on. It specifically criminalizes "torture," defined as the intentional infliction of severe pain and suffering, physical or mental, outside of the country, by federal law and by the ratification of a U.N. Convention Against Torture and the Geneva Conventions, which prohibited the torture of prisoners of war. Apart from the common sense knowledge that the drowning sensation produced by waterboarding is torture as that term is commonly understood, there is a well-established legal precedent for this meaning. Japanese interrogators who used this method on American prisoners of war were convicted as war criminals.
Alberto R. Gonzales, as a lawyer and former judge, knew or should have known that waterboarding was torture and punishable as a crime based on the common understanding of the word "torture" and the clarity of the law, treaties and legal precedent dealing with it. Yet, he, as Bush's legal counsel, requested an opinion in 2002 from the OLC regarding whether Bush's enhanced interrogation methods of al-Qaida suspects during the "current war on terrorism" violated international law, and if these methods could be the basis for prosecution in the International Criminal Court. The only reasonable explanation for the request of this opinion is that the Bush administration wanted a legal cover against future prosecution.
They got it in Yoo's "torture memos." These legal opinions were full of his personal views and lacked any court cases, constitutional text and American history on point. Yoo noted that torture, as a crime, required a specific intent to inflict severe pain and suffering, but in his bizarre reasoning, he concluded this was not the intent of the interrogators. They, according to Yoo, intended only to obtain information and any pain or suffering was incidental to their objective. Therefore, he concluded, Bush's "enhanced" method of interrogation was not the crime of torture punishable under U.S. law and the U.N. treaty. A first year law school student would get an F for such obviously flawed legal reasoning.
In dealing with the Geneva Conventions protection of prisoners of war, Yoo without any pretense of research or precedents, simply declared that al-Qaida suspects in custody were not prisoners of war because they were members of "non-state terrorists organizations that have not signed (the) Convention." In other words, they were individuals, like those under a dictatorship, without any legal rights or protection.
Then Yoo went further in his memos and declared that in his view of the Constitution, the president as commander-in-chief during a war (Bush's war on terrorism) has broad powers and any ambiguities, constitutional or otherwise, are to be resolved in favor of full presidential power.
President Obama's administration recently released more of these memos by Yoo and others which justified the president's violation of the constitutional Bill of Rights. These memos reportedly would allow the use of the military in America to break into homes and take away suspected "illegal combatants" and hold them indefinitely without a court hearing, spy on Americans without court orders, and stifle speech by cracking down on critics.
Just five days before Obama's inauguration, Bush's acting head of OLC, Steven Bradbury, whose name reportedly appears on some of these memos, disavowed them by saying they were flawed and no longer supported by that office. The Justice Department's Office of Professional Responsibility has reportedly prepared a highly critical report of Yoo and the memos.
The chilling thought is that if Bush fully acted on these memos, would our other democratic institutions (the legal system, other elected officials) have stopped him? Wolf points out that such institutions in Germany in the 1930s could not stop the dictatorship there.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"Beware Congress' heavy hand"
By Robert "Frank" Jakubowicz
The Berkshire Eagle, Op-Ed, Sunday, March 29, 2009
The framers of our Constitution worried about the public stampeding the House of Representatives, into taking "quick, drastic and problematic action." A current example is the public outrage that drove the House to pass a bill in a few days with little debate imposing a 90 percent tax on unreturned bonuses paid to employees, with family incomes in excess of $250,000, by companies receiving Troubled Asset Relief Program (TARP) funds. But while the public outrage is understandable, the public should understand that the power of Congress to act is limited.
One constitutional limit by the framers on House action is the separation of powers. There is a Senate (yet to act on the House bill), a president (yet to sign or veto such a bill passed by both congressional branches) and a Supreme Court (yet to review such bill if it is signed into law). The other limit is a list of legislative prohibitions in the Constitution such as a ban on enacting a "bill of attainder." Some constitutional experts are raising questions about whether the House bill if enacted into law would be struck down by the Supreme Court as a "bill of attainder."
The Supreme Court has defined a "bill of attainder" as a law enacted by a legislative body pronouncing the guilt of a specific individual or group of individuals without a trial and imposing a punishment based on its own notion of the enormity of the offending act. The Supreme Court has said that the evil the Framers sought to bar with this constitutional ban was legislative punishment in any form imposed on specifically designated persons or group without a trial.
One does not have to be a political scientist to figure out the problem with this type of legislation. For example, Congress, if allowed to so legislate, could pass a law that CEOs of the investment banks, insurance company, bond rating companies, and mortgage lenders that were responsible for the current economic problem be barred from future employment in these financial fields. Or Congress could pass a law aimed at specific group such as lawyers because congressmen think they unfairly charge clients and they should be punished with extreme tax rates.
The House bill comes close to doing this to the group of employees receiving the bonuses in question. As one House member said on television to the employees, "give the money back, or we'll get you."
The House bill singles out a specific group of individuals (the employees of companies receiving TARP funds), whom they pronounced guilty of an act (the receipt of the bonuses) that offends these congressmen (partly because of the political egg on their faces for allowing the payment of the TARP funds while overlooking the preexisting employee bonus contracts) to the extent that they imposed a punishment (to in effect recoup the bulk of any unreturned bonuses by a 90 percent tax) on these individuals. The House members did all of this without affording the employees the opportunity to exercise their constitutional right to have a court decide the legal issues such as the pre-existing contracts for the payment of the bonuses.
The Supreme Court has mainly decided "bill of attainder" cases which involved laws barring designated individuals or groups from specified employment because these laws branded such individuals as disloyal. In one case, the court overturned the conviction of a Catholic priest during the civil war because he was performing his religious duties without subscribing to a state loyalty oath required to be made by priests, and other religious ministers. In another case during the cold war, the court overturned a federal law making it a crime for a member of the communist party to serve as an officer of a labor union. In both cases, the court ruled that the laws were bills of attainder because they focused on a specific members of a class and imposed a mandatory forfeiture of employment which has long been deemed a punishment.
But the court did find in one case that the federal law did not violate the "bill of attainder" prohibition despite its singling out of former President Richard Nixon to specifically give up his presidential papers and tapes. Nixon after his resignation made an agreement with government officials to retain control of access to his presidential papers and tapes with a right by him to destroy the tapes. The special prosecutor in the Watergate investigation sought the tapes. Congress passed a law specifically directed at and naming Nixon which overrode the agreement and made the papers and tapes available to the government. Nixon challenged the law as an unconstitutional "bill of attainder."
The Supreme Court upheld the law and said that even if singling out an individual was present in this law, there was no punishment of Nixon. The justices reasoned that this was a unique situation because all of the presidential papers from Hoover to Johnson at the time were housed in functioning presidential libraries and only Nixon's papers at the time demanded further action. The justices added that Congress had legitimate concerns about what should be done with them.
My point is that Congress, to use an old cliché, cannot just take the law into its own hands and use it to right every perceived wrong.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"Anger, despair and guns"
By Robert "Frank" Jakubowicz
The Berkshire Eagle, Op-Ed, Thursday, April 9, 2009
There are no simple and quick fixes for the recent spree of mass murder shootings in the nation. Professor James A. Fox, an authority on gun violence, recently said that understanding such mass murder, reducing gun availability, and changing gun laws will not necessarily solve the problem. But he said that even though these events are unpredictable and will continue to occur, the good news, according to Fox, is that these violent episodes are rare.
I think that is a fair assessment when one considers all of the daily human activity that goes on in the nation and the world without any mass killings by shooters. Otherwise people would be barricading themselves in their homes and the police would be reluctant to respond to calls for assistance. But the multiple victims involved in such horrific acts overshadow the predominantly safe human conduct in the world. The sensationalism over the mass shootings is the rarity of such events. The public reaction is analogous to that of the multiple victims of an airplane crash, which tends to make the public overlook the overwhelming safe, daily airplane flights.
This is not to say that steps should not be taken to minimize mass shootings. An attempt to totally ban guns is not an option because the Supreme Court recently interpreted the Second Amendment as granting a constitutional right to Americans to "keep and bear arms." But the justices appear to have left some legal wiggle room for reasonable regulation.
One such measure that is just plain common sense to minimize multiple victims in a shooting spree is the restriction of military-type assault weapons to the military and to law enforcement. The shooter in Pittsburgh without his reported "assault rifle" probably would not have been able to quickly gun down the three police officers who approached his house. Not only do these weapons pose a danger for the police in the hands of shooters bent on killing them, but they are dangerous even when used for sport in the hands of trained firearm personnel.
A former Pelham, Massachusetts police chief, who the Boston Globe reported was "well known" as a gun safety advocate who regularly visited schools to teach the National Rifle Association's "Eddie Eagle Gun Safety Program" to children, was recently charged with involuntary manslaughter in the gun death of an 8-year-old boy. This individual ran a gun fair at a gun club for the public to shoot weapons under the guidance of certified instructors. The boy was allowed to fire a micro Uzi, an automatic weapon used by Israeli special forces, and he shot and killed himself.
The gun lobby's position is that the gun problem in America is not with guns, but with the criminals and others who seemingly for a variety of bad reasons use guns to kill people. The gun lobby contends that such criminals need to be prosecuted and incarcerated while those other individuals should be prevented from obtaining guns. But the flaw in such an argument is that unless such criminals receive a life sentence or capital punishment, they eventually are back on the street with relative easy access to an illegal trade in guns. It is also difficult to identify and predict whether such individuals as the shooters in Binghamton, New York and Pittsburgh who had gun permits would seek revenge by mass shooting for reportedly losing their jobs.
It is not realistic to think that a significant dent can be made by the government in sorting out and confiscating the guns in the illegal trade from the estimated 250 million guns in circulation in this country. But there are steps that can be taken to limit more guns in circulation. Some of them are to require background checks for all gun purchases and to regulate gun shows. But such measures by themselves do not address the problem presented by the Binghamton and Pittsburgh shooters who apparently had recently lost their jobs and felt threatened by society, or the husband who shot and killed eight in a North Carolina nursing home and the husband in the state of Washington who shot and killed himself and his five children because in each case their wives decided to leave them.
Fox has concluded that such factors as being unable to cope with disappointment, blaming others, lack of emotional support from friends and family, a precipitating event (a job loss, a marriage breakup) are all causes for individuals to resort to a weapon powerful enough to satisfy their need for revenge. This goes to the root causes of many of these mass shooting sprees. The current bad economy is causing too many traumatic job losses. Rising divorce rates are breaking up families with a lot of trauma. But these are often overlooked societal effects by the general public in why it is important to fix our economy and have programs in place to deal with spouses and their children with marital problems.
One by-product of these societal problems has been felt in Pittsfield by the emergence of street shootings by jobless young men, many from broken families, who have apparently come here to live off a drug trade in this area at the junction between New York and Massachusetts.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a former FBI agent and a regular Eagle contributor.
Re: There are many kinds of "men"
There are many kinds of "men" -- some who carry a gun and some with a fountain pen!
Crime and immorality come in many different levels of human behaviors.
For example, Nazi Germany's Adolf Eichmann -- http://en.wikipedia.org/wiki/Adolf_Eichmann -- never actually killed a single human being, but he was the chief bureaucrat (or extermination administrator) who oversaw the Holocaust where over 6 million innocent Jewish lives were taken along with many millions of "others" who were persecuted by the then-Hitlerian State. In the Autumn of 1941, the decision was made that all the Jews in German-controlled Europe were to be exterminated. Eichmann then after went onto work deporting Jews, sending 430,000 Hungarians to their deaths in the gas chambers. When the Nazi's finally reversed their orders to end and cover up their genocide against the Jews, Eichmann was appalled by the turnabout, and continued his work in Hungary against official orders!
The point being that some "men" hold a fountain pen, which is far more dangerous than a gun. We must work against corrupt politicians more so than a gun slinger. We must work to STOP all of the special interests in our local, state and national political systems. We must demand an end to poverty, homelessness, hunger, poorly performing schools, and the like.
- Jonathan Melle
"Entire House shares indictment"
The Berkshire Eagle, Op-Ed, By Robert F. Jakubowicz, Saturday, June 6, 2009
The criminal indictment of former House Speaker Salvatore DiMasi based on allegedly conspiring to violate his duty to the citizens of this state by criminal dishonesty and self-enrichment, is also a political indictment of every individual member of that body for their political conspiracy of dishonesty in violation of their duty as representatives of their constituents.
This political conspiracy by each state representative is their joining together to allow one of their members to become their leader, and in that position to run the body based on his personal whims. In other words, they have conspired to create a virtual one-man Legislature.
This point is made in part of the criminal indictment, which cites an e-mail sent by Joseph P. Lally, Jr., one of the co-defendants with DiMasi, to a Cognos executive who was worried about the secretary of administration and finance regarding the sale of the software in question to the state. The message states: "Sal said when he wants something done within his domain he is ultimately going to get what he wants."
Another telling point is that except for the allegation that DiMasi asked one representative to sponsor a piece of the House legislation in question, no other House members are mentioned in the indictment. DiMasi, according to the indictment, was able to orchestrate the entire matter in the Legislature on his own. House members simply acceded to his actions of inserting the statutory language, given to him in part by Cognos representatives, in budget amendments and bond legislation, which not only set the scheme in motion but mandated funding for Cognos.
I continue to be amazed that, for the most part, neither the media nor the public want to understand what is going on in the legislature. This process is based on a long-standing practice of a member periodically soliciting support from a majority to be named the speaker of the House, and in return making promises to deliver legislative perks to these supporters (leadership positions that carry additional pay, preference for pet legislation, large staffs, big office space and so on). Part of this quid pro quo is that these legislative supporters will tacitly or overtly by their votes support the speaker in his actions.
The important point is that a speaker is only able to do what a majority of legislators allow him to do. Each member has only one vote. None of the members are preordained by the voters or the state Constitution to have any more legislative power than any other member. My message to a public fed up with the shenanigans on Beacon Hill is that all it would take to reform things is for a majority or 81 members to stand up and demand a democratic and open Legislature run by majority and not one person.
Instead of such a reform movement, television news analysts and editorial writers are making the point that now the governor will be able to push his call for legislative reform. But none of those proposed reforms regarding legislative pensions, gifts and so on will do much to change the practice of allowing a House speaker to be a one-man band at the Statehouse. Such power, as we have witnessed at the Statehouse, does indeed corrupt, as stated in the old adage.
Current Speaker Robert DeLeo, who was a member of DiMasi's leadership team, was nurtured as a representative in this system of leadership. So far, he has predictably continued the old style of leadership by first making a big effort to solicit support, then rewarding his supporters with perks and penalizing his opponents by banishing them to the back benches of the House chamber. He continues to play the role of the one powerful House member by essentially being the sole voice of the entire House on state policy matters.
I would like to think that the indictment of DiMasi just might prompt the media into reporting the real underlying reason for a string of three successive House speakers running afoul of the law, namely, the creation of all-powerful legislative leaders by a majority of the members. That would induce editorial writers, television political commentators and other political analysts to urge the voters to hold their individual representatives accountable and demand real legislative reform. Then voters would finally get the message that their own representatives share the guilt in how the Legislature operates under speakers like DiMasi.
Robert "Frank" Jakubowicz, a Pittsfield lawyer and former state representative, is a regular Eagle contributor.
The Lively World: "Our pols are responsible, too"
By Milton Bass, The Berkshire Eagle, Op-Ed, Sunday, June 14, 2009
You can call me crazy if you want, but I think there is something weird going on in Boston. The Massachusetts Legislature, to be specific. It's nothing you can put your finger on but there may be something wrong with the way our elected representatives are conducting business, especially business as usual.
First of all, if one Speaker of the House of Representatives does something wrong and is caught at it, then maybe it's because he's the proverbial bad apple in the barrel. But then when a second Speaker of the House of Representative does something illegal and is caught at it, then maybe it's because we weren't paying attention. But then when the third in a row Speaker of the House of Representatives is indicted on fraud and conspiracy charges, then maybe the whole system is rotten and we have to vote out everybody, guilty and not guilty, and start over from scratch. Fool me once Fool me twice Fool me thrice?
We have to do away with the clubhouse atmosphere that has become ingrained it the Legislature. Once a person is elected, he or she seems to lose the integrity and responsibility that should be essential for a representative of the people. The new official becomes low person on the totem poll who is entitled to nothing as far as the political hierarchy goes. They are the new people on the block who have to prove their loyalty if they have any hopes of decent office space and furniture, personnel, chances of advancement on committees and the ear of the Speaker.
When Salvatore F. DiMasi abruptly retired some months ago shortly after he was exuberantly re-elected Speaker for the second time, I watched the farewell on television and was amazed by the number of assistants he had in his office. He proudly praised them for their work and you could tell just by their titles that a lot of them had little to do. Representatives were applauding vigorously and laughing heartily whenever DiMasi seemed to think he was making a joke.
Everybody knows and talks about how the Speakers have acquired too much power over the years but nobody has done anything about it except for the district attorneys who have prosecuted them.
Former Rep. Frank Hynes, Democrat of Marshfield who retired last year after serving 25 years, had this to say about the Speaker post.
"Too much power has accumulated over the years in that position," said Hynes. "Even in little things, little votes that have no relationship to either the Democratic Party's values or ideals, the speaker demands 100 percent lockstep fellowship. The Speaker controls basically everything — where you sit, where you stand, how many aides you get, whether you get a good parking space."
Our own former representative, Pittsfield Attorney Robert F. Jakubowitz, has brilliantly and incisively commented several times on what is wrong in Boston. In his Eagle op-ed column last week, he said that the indictments of the Speakers "(are) also a political indictment of every individual member of that body for their political conspiracy of dishonesty in violation of their duty as representatives of their constituents."
The few Republicans in both the House and the Senate have been trying to use the sordid situation as a rallying cry to elect more Republicans. But their programs, slogans and diatribes are so weak and pitiful that they have no chance to get votes even from outraged common-sense citizens.
Meanwhile, the Democratic governor we elected, Deval Patrick, the pride of Richmond, is in a face-off with the leaders of both houses in his attempt to cut back on excessive pension benefits, ethics and lobbying rules, perks and privileges, and the transportation networks. The Legislature's leaders are trying to tie Patrick aides to the malfeasances that have occurred. Why didn't they stop this mess before it got so messy?
When playwright William Inge was in Berkshire residence, a literary magazine ran a vile attack on him and his work. Then the editor of the magazine called Inge to find out if he wanted to write a rebuttal.
"That," Inge replied, "is like cutting a man's throat and inviting him to scream." And right now that is what is going on in Boston.
In his analysis of the situation, Frank Jakubowicz had the following solution. He suggested that the media dig all the way down to the bottom of the mess. The revelations so far have all been due to the brilliant investigative reporting by the embattled Boston Globe.
"Then," wrote Jakubowicz, "voters would finally get the message that their own representatives share the guilt in how the Legislature operates under speakers like DiMasi."
May I second the suggestion. Right now everybody who runs for office promises to bring more jobs to the area, which they never do once they are elected. Let them henceforth pledge integrity, openness and plain old guts come re-election or high water. All the voters in the state should let their politicos know that they are being held responsible. And that includes the ones from our area.
Milton Bass is a regular Eagle contributor.
"All cranks in their place"
By Robert "Frank" Jakubowicz, Op-Ed, The Berkshire Eagle, Saturday, July 4, 2009
America's independence 233 years ago launched a country, according to Charles P. Pierce, author of "Idiot America -- How Stupidity Became a Virtue in the Land of the Free," which "set free a spirit by which every Idea, no matter how howling mad, can be heard." Over the years, commentators have praised this constitutionally protected freedom to express views from worthy ideas to, unpopular, distasteful, ridiculous or offensive ones because they thought that the greater the exposure to such varied discourse the better equipped Americans would be to recognize the best of such ideas. Pierce argues, however, that this experiment by the Founding Fathers has run amok.
Pierce says that one of the great byproducts of the Founders' experiment of this unlimited freedom of expression was the American crank. And, so long as the American people kept these cranks on the fringes of society by either refuting them or assimilating anything worthy that they had to offer into the mainstream, the experiment was working. But Pierce concludes that an indolent, ill-informed majority of Americans not only allowed the cranks to drift into the mainstream, but also to take over the government. His main offer of proof is the presidency of George W. Bush. This point is well taken because Bush was the crank-in-chief.
Thomas Jefferson, who is credited with writing the Declaration of Independence, is widely quoted about his belief that it would take a well-informed citizenry to make our government work. The emphasis by Jefferson in that document was on the "people." He was writing for the "people" to declare their independence and to assert their right to form a new government. The Constitution likewise in its preamble emphasized that it is, "We the people . . . (who) establish this" document. In this context, Jefferson left a message for future Americans, that, "whenever (we) the people are well-informed, (we) can be trusted with (our) government; that whenever things get so far wrong as to attract (our) notice, (we) may be relied on to set them straight."
Bush's administration kept the people ignorant of the actual reason it invaded Iraq. That crank idea was hatched during the Clinton administration when a group of neocons, including Dick Cheney, Paul Wolfowitz, Donald Rumsfeld, et al, tried to persuade President Clinton to invade Iraq. He refused. Later when Cheney and company took over the Bush administration they sold it to the public as a necessary deterrence to an imminent nuclear threat.
Pierce spared Clinton's administration from sharing the fault for the Wall Street economic meltdown. Clinton allowed the federal law change for the crank idea of deregulating financial market transactions, but Bush shares most of the blame because he made the economic problem worse with his bloated federal budgets, his tax cuts favoring the wealthy, and his cutback in federal regulatory personnel in all areas to make virtually ineffective. Perhaps worst of all, Bush, with his exaggerated fear-mongering, combined the crank policy with the constitutional notion that he was above the law as a war-time president, albeit it was his self-proclaimed "war on terror."
During this time, and especially under the Bush administration and the Republican control of Congress, America did indeed live through what Pierce calls an "unprecedented decade of richly empowered hooey." One of the basic problems for this was the lack of an informed public that Jefferson considered a requisite for the Founders experiment to work.
Jefferson overlooked one important problem with his admonition, namely, who would inform the public. Today, we are in an age of being bombarded by too much information. But obviously there was something wrong with our sources of information, because in the recent past Americans and many of their congressmen were probably the most ill-informed of what was going on in the Bush administration.
Pierce's solution for the breaking of what he calls this spell of idiocy is for Americans to put things back in order. In other words, to treat the ridiculous with ridicule, and to not elect cranks to public office. This seems to be happening because Bush got things so far wrong that a majority of Americans came to their senses and decided to set things straight. They elected President Barack Obama, a non-crank, as a rebuff to the crank ticket of McCain and Palin. And the voters elected a Democratic majority to Congress relegating the cranks of the Republican Party to minority status.
This observance of Independence Day is a good time for Americans to resolve to maintain public momentum to set things right by keeping the cranks and their ideas in their place, namely, on the fringe of our society and out of public office. A sampling of some of the current crank views should be enough to convince anyone with common sense to do so.
Consider Rush Limbaugh's inference that it was South Carolina Gov. Sanford beginning upset with Obama's stimulus package that played a role in his sexual tryst. Florida Congressman Bill Posey's measure to require birth certificates of presidential candidates because of bogus questions about Obama's citizenship. Minnesota Congresswoman Michelle Bachman's call for Americans to refuse to answer U.S. census questions because Obama might use the information against them. The just-say-no to Obama's policies of the GOP minority in Congress. Just to name a few.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
Re: The Founding Fathers' FLAWS
The Founding Fathers owned SLAVES! How come the Declaration of Independence did not include the slaves? The Founding Fathers did NOT allow women and many other people to VOTE! How come the Declaration of Independence did not allow all of the people to vote? The Declaration of Independence goes after King George III for not bailing out an insolvent Massachusetts provincial government when it was the English Parliament that held the purse strings and said "No" to John Hancock & company. The people of Great Britain via their elected delegates to Parliament were the ones who would not bail-out Massachusetts. So why was the English King scapegoated for Massachusetts financial insolvency? Why did the Revolutionaries say "No taxation with representation" when they did not allow a great majority of the people to vote? A decade later during Shay's Rebellion, Veterans of the Revolutionary War in Western Massachusetts were insolvent farmers during difficult economic times. Massachusetts State Senator Sam Adams declined to bail-out the very people who fought for his nearly similar cause a decade earlier during the Revolutionary War! Daniel Shays and his militia were more than people and citizens, they were also Veterans who were losing their homes, farms, and financial security. Their cause a decade later was the nearly same cause of the War they fought for a decade earlier. Again, another case of hypocrisy. Don't get me wrong, I believe in the cause of Freedom and the Founders' vision of America as a great democracy, but don't get the Founding Fathers wrong either -- as they were hypocrites to the extreme who talked the talk without ever walking the walk!
- Jonathan Melle
"Nominees dance like knuckleballs"
By Robert F. Jakubowicz, Op-Ed, The Berkshire Eagle, July 22, 2009
To use a baseball metaphor, trying to figure out from the Senate hearings how Supreme Court nominee Sonia Sotomayor might rule as a justice is akin to trying to figure out where Red Sox pitcher Tim Wakefield's knuckleballs are heading.
Batters know Wakefield throws knuckleballs. But they have a problem hitting them. The reason for this is that it is difficult to anticipate where the pitch is headed. There is no rotation on the ball. As the ball heads for the plate it simply moves from side to side and flutters like a butterfly. As it approaches the batter, it makes a final erratic move.
Anyone with any actual knowledge of how the Supreme Court works knows that it is not an exaggeration to say that the Constitution means what a majority of the justices say it means. But senators, presidents and all Americans continue to have problems of trying to figure out where a nominee is heading as a new justice based on the confirmation process.
The reason for this uncertainty is the fluttery, knuckleball-like testimony by nominees before the Senate Judiciary Committee. This has become a routine part of the political ball game that is played by presidents and opposing political party members on the committee.
A president's staff coaches judicial nominees to avoid giving direct answers about their personal beliefs on public issues to providing clues on how they may rule as justices lest they be criticized. And the minority members of the committee try to hit these nominees with questions to elicit such beliefs.
This has led the media to try keep score on how both sides are faring. A story in the Boston Globe last week carried the headline that Sotomayor "Wards off efforts to pin her down." And an on-line computer news report ran the brief line "Sotomayor: No vetting of personal views before nomination."
The Founders did not envision this process of vetting judicial nominees when they constitutionally empowered a president to appoint judges with the "advice and consent of the Senate." It was not until 1925 that Supreme Court justice nominees appeared to testify before the Senate. And it wasn't until 1955 that such appearances became routine.
Then in 1987, when President Reagan nominated Robert Bork as a justice to the court, Senator Ted Kennedy pounced on Bork's beliefs that appeared in numerous prior writings and speeches to publicly attack him. Kennedy warned that Bork's appointment based on his beliefs would: force women into back-alley abortions, have blacks eat at segregated lunch counters, allow rogue police to break down citizen's doors at midnight, cause censorship of writers, and ban the teaching of evolution in public schools. The Senate rejected Bork's nomination.
A newspaper columnist turned the word "Bork" into a verb. And today the phrase "to bork" someone means to revile a person for his or her personal views in order to prevent appointment of the person to a public office. Thus today, to avoid the borking of a nominee, presidents follow two basic rules for their judicial selections to the Supreme Court.
They try to select nominees with a minimal public record of their philosophical views, especially on controversial subjects. And they rehearse nominees not to become pinned down on their personal views at Senate confirmation hearings. Consider the highlight of Sotomayor's hearing. The main strategy by Senate committee Republicans was "to bork" her as a racist because of her "wise Latina" statement. She survived this attack, but this did not make the nation any wiser about what kind of justice she would be.
This is not to say that Sotomayor does not have the basic academic background and legal experience to sit on the Supreme Court. My point is that neither the president, the Senate nor the American people have any real clue as to what kind of justice she will be. Up to now, as a federal circuit court of appeals judge, she had to follow legal precedents set by the Supreme Court, but as a justice of the latter court she will be setting legal precedents, and that is a huge difference.
There is a school of thought that demonstrated self-restraint, rather than a nominee's personal beliefs, is the most important qualification for a Supreme Court justice. In other words, such an individual would not be likely to make abrupt or radical changes to the existing body of constitutional law based on personal whims.
I agree that this is an important consideration because the only real restraint on a Supreme Court justice is his or her self-restraint. But I also think that the personal views of a nominee on issues that may come before the court are equally important because no human being can act or think in that capacity without some connection with his or her personal beliefs. Knowing this about a nominee's beliefs, Americans would at least have some clues about how the individual may rule as a justice of the court, rather than having to guess whether someone like Sotomayor will rule with empathy, be biased against whites, be liberal or conservative, or be an activist or strict constructionist justice.
Sotomayor's predecessor, Justice David Souter, surprised everybody by joining the liberal wing of the court. It remains to be seen whether we too will be surprised by his successor.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"Racism frenzy clouded real Gates issue"
By Robert "Frank" Jakubowicz, Op-Ed, The Berkshire Eagle, August 2, 2009
As a lawyer and former assistant district attorney, I was intrigued by the disorderly conduct charge leveled against the prominent Harvard scholar, Henry Louis Gates Jr., by a Cambridge police officer because there appears to be no legal or factual basis for that charge. This issue was glossed over by the media with a blitz of speculation that racism was involved in this case because of an offhand reply by President Obama to an unexpected question at a presidential press conference about the arrest of Gates, a black, based on this charge by a white police officer.
Lynn Sweet, a Chicago Sun Times columnist, launched this story as a racial event for national news headlines. She used Obama's press conference dedicated to health reform to catch him unprepared with her question: "What does that incident (the Gates arrest) say to you, and what does it say about race relations in America?" Her question not only assumed that this incident was racist-related because it involved a white police officer arresting a black male, but it also called for a reply about this incident as of racism in the country.
I think it is fair to say that she was seeking a controversial news sound bite for the day. And she got it when the president took her bait and gave his knee-jerk answer that the Cambridge police "acted stupidly," that African-Americans are disproportionately stopped by police, and "that race remains a factor in our society."
Sweet's question and the president's answer is all that today's print and broadcast news media needed to pick up the story and run with it as news about racism in America. The persistence by the media in creating public interest in this story caused a blitz of print and television coverage. In the wake of this media attention, Sweet felt compelled to write that it was not her question, but the president's reply "that was really provocative." After criticism from police unions and some politicians, the president felt compelled not only to backtrack from his earlier reply, but issued an invitation to the police officer and Gates to meet at the White House for a beer last week to defuse the journalistic firestorm.
Actually, the most provocative part of this story was the legitimacy of the arrest. Gates was arrested for "disorderly conduct." This is a broad and somewhat vague term for a crime, and the state's highest court has taken pains to craft a definition of what constitutes such conduct. It has been defined as conduct causing public inconvenience, annoyance or alarm by a person who either engages in fighting, threatening, violent, or tumultuous behavior, or who creates a hazardous or physically offensive condition without any legitimate purpose.
The court has defined "tumultuous" as behavior involving "riotous commotion and unreasonable noise" so as to create a public nuisance. The court has ruled that words alone do not violate this law, rather they must be "fighting words" that tend to excite an immediate breach of the peace. All police officers, including Sgt. James Crowley, the arresting officer, should be aware of these definitions.
Gates through his attorney said he only asked Crowley repeatedly for his badge number and name. If this is all that happened, then Crowley committed an egregious mistake in making the arrest for "Disorderly Conduct." Crowley, based on his public statements and the reported contents of the police report, said Gates exhibited "tumultuous behavior" by shouting "(t)his is what happens to black men in America," by calling Crowley a "racist" and when Gates was asked for identification, by repeatedly telling Crowley that "(y)ou don't know who your (sic) messing with."
According to Crowley, the continued shouting caught the attention of some "seven surprised and alarmed onlookers." If this is all that happened, then in my opinion it would still not rise to the type of behavior to fit the definition of disorderly conduct. Any reasonably acting police officer would have simply left the scene.
This is the real gist of the story. A police officer acted unreasonably to make a bad arrest. And that is a bad situation worthy of comment as news.
Because the story involved a black scholar in the field of race relations, friendly with the president, and a white officer who lectured about racial profiling, the media quickly cast the story as an unexpected example of racial profiling by because of these parties. This is all speculation. Crowley denies any racism. We cannot get into Crowley's mind to conclude differently.
Gates called Crowley a rogue cop and a racist based on the latter making the arrest and placing Gates in handcuffs. These actions by Crowley without more do not prove he was acting as a racist, rather they indicate that Crowley exercised poor professional judgment and acted on emotion in the heat of the moment by at most being confronted by Gates.
Perhaps the most disturbing aspect of this story is that the incident occurred in the privacy of Gates' residence. America prides itself for adhering to the principle of privacy -- expressed by the proverb that "A man's home is his castle" -- as something that is fundamental to the American system of government. The troublesome action of the police officer in this case contrary to that proverb should have been the highlight of the story.
Robert "Frank" Jakubowicz, a Pittsfield lawyer and former Berkshire County assistant DA, is a regular Eagle contributor.
My Dad & I went to the Red Sox game v the A's on Monday evening, 7/27/2009. Pitcher Josh Beckett had 10 K's and the Red Sox won 8-3. I remember when you used to give my Dad & I your season tickets to a Red Sox game when I was a kid. Anyways, I am currently indicted on a false charge of "Disorderly Conduct", among 6 other false criminal charges that I have been wrongly indicted on in New Hampshire Superior Court in downtown Manchester. I would like it if you considered attending my trial by jury beginning with jury selection on Monday, September 28, 2009, at 9 am. After I am acquitted, I am going to sue the city & state for damages in Federal Court. To read more about my criminal case, please visit my Blog page:
There is also a page on topix:
I hope that you like my Blog page on you:
"Founders' fears come true"
By Robert "Frank" Jakubowicz, The Berkshire Eagle, Op-Ed, Wednesday, September 16, 2009
If we could resurrect the Founding Fathers and ask them about the current tomfoolery in our government, they would say: "We warned you about this happening if you allowed the government to be run by two major parties."
The Founders feared the "mischief" (James Madison), "the personal animosity" (Alexander Hamilton), and the "dread" of "the division of the republic into two great (political) parties" (John Adams). And now we are witnessing the realization of the worst of their fears by the partisan divisiveness, meanness, and rancor directed at President Obama and his fellow Democrats in Congress by the congressional Republicans and their supporters, dominated by extremists.
The Founders, according to James MacGregor Burns, held out hope that they from scratch could create a pure political order that would function only in the public's interest without political parties. Their ideal was for Americans to join together after the adoption of the Constitution to, directly or indirectly through their elected representatives, legislate and govern for the common good.
The Founders displayed a keen insight about the potential for bad consequences if the citizenry instead allowed itself to be governed by two major competing parties. They were concerned that this would sharpen antagonisms, between social classes, religious groups and people with differing political beliefs. And it did.
The Republican Party became associated with business, the wealthy, the advocates of small government limited mainly to national security and enforcing business contracts, the religious right, and conservative groups. The Democratic Party became associated with labor, the advocates of a government of sufficient size to provide safety net programs, and liberal groups. But until recently, there were members in each of the parties who were willing to come together, crossing party lines, to legislate and govern for a mutually agreed upon common good.
However, such an accommodation by party members has come to an end. As evidenced by what is going on in Washington today, the Founders' worst concern about a two major party division in this country has been realized. Namely, that the parties or a party would come to view every issue in terms of winners and losers, which would dispel any willingness to compromise differences for the common good.
Indeed, the Republican Party has now been taken over by extremist groups who have no interest in political compromise on any of their political positions, which they consider to be the right side as opposed to the other side being the wrong or evil side that must be defeated. These extremists have cowed congressional Republicans and leaders of that party into going along with an all-out political war to defeat what they consider a serious threat to America by an enemy government led by Obama, who the "birther" faction of extremists preposterously believe is not a legitimate president.
This point is exemplified by statements being made by Republican Party leaders. South Carolina Republican Senator Jim DeMint in a National Press Club speech, said: "If we're able to stop Obama on this (health care), it will be his Waterloo. It will break him." Alan Keyes a Republican activist who sought the party's nomination for president in the past said: "He (Obama) is going to destroy this country, and we're either going to stop him, or the United States is going to cease to exist." Michael Steele, the chair of the Republican National Committee, bragged about how proud he was because Republican members of the House of Representatives gave Obama a "goose egg" on the stimulus package. Minnesota GOP Rep. Michele Bachman sent messages to her constituents from Congress noting that she was reporting from behind "enemy lines."
This belligerent and completely negative opposition is based on nonsense that would be laughable if it did not send chilling messages to those who do not know better -- such as the armed individuals in public and others carrying signs about spilling blood to defend liberty and ready to stop Obama. DeWitt told the National Press Club that under Obama, America is now about where Germany was before World War II. Obama is being characterized as a Hitler-like figure with a plan in the guise of health care reform to euthanize Americans, including, as Iowa Republican Sen. Chuck Grassley said, pulling "the plug on Grandma." Grassley, as a key member of the Senate committee working on a bipartisan health care bill, is instead working on sabotaging the bill to beat Obama.
This diatribe has caused the ludicrous characterization of Obama as a Hitler-like figure intent on foisting "socialism" -- a political theory that many Obama haters do not even understand -- on this nation. This nonsense is causing unnecessary fear, especially among gullible and vulnerable elderly people who are becoming deathly afraid of health care rationing.
Unless sensible, moderate Republicans retake control of their party with the political courage to call out the extremists elements, stop the foolishness and return the national debate on public issues like health care to a thoughtful and respectful dialogue, this nation is headed for serious political trouble. There will either be one party rule by the Democrats in the foreseeable future or the Democrats will respond in kind to create endless, senseless party warfare. In either event, this will not be a good thing for the governance of America in the long term.
Robert "Frank" Jakubowicz is a Pittsfield lawyer and regular Eagle contributor.
"Court let loose the corporate giant"
By Robert "Frank" Jakubowicz, The Berkshire Eagle Online, Op-Ed, Thursday, October 1, 2009, PITTSFIELD, Massachusetts
American business corporations are roaming the halls of Congress today like the Biblical nine-foot-tall Goliath in full armor ready to do battle with David-like ordinary Americans over health care reform and just about every legislative action. The exasperating part is that the U.S. Supreme Court in effect took the slingshot out of the hands of the common people which was the past power of states to strictly control these corporations.
After the American Revolution, Americans were wary of corporations because of being exploited earlier by British chartered corporations like the East India Trading Company whose tea they dumped into the ocean during the Boston tea party. Thomas Jefferson exemplified the Founders' attitude when he said, "I hope we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength."
Corporations were deliberately not mentioned in the Constitution. The control over them was dispersed among the states who for nearly 100 years exercised strict control over them.
With the coming of the industrial revolution, corporations blossomed. The main purpose of these business entities in this American Gilded Age was making profit and more profit. They complained that the strict rule of the states impeded their profit-making. Railroads complained that their being subjected to different regulations in each state through which their tracks ran was depriving them of their profits.
They filed endless legal actions over state regulations and constantly argued that a corporation was a "person" under the 14th Amendment to the Constitution and that states could not deprive it of its "property," namely its profits, without "due process of law," and "equal protection of the law." The courts consistently denied this constitutional claim until the 1886 Supreme Court case of Santa Clara County v. Southern Pacific Railroad Company.
That case involved a challenge by a railroad corporation to the tax assessment procedure under a California law because it improperly included some land. The question of whether a corporation was entitled to constitutional protection was not an issue in this case. But oddly the chief justice made an offhand remark on the bench after the lawyers concluded their arguments that he did not want to hear any arguments on the question of whether the 14th Amendment of the Constitution applied to corporations because all the justices were of the opinion that it did. There was no reason given by the court for this remark. The case was then written up by the court reporter as a ruling that corporations are persons within the 14th Amendment.
This was a startling development in American jurisprudence because that constitutional question was not before the court, and there was no reason given of why a corporation should be treated as a natural person. It was as if the chief justice simply supposed that this was so. A warped legal supposition that reminds me of Charles Dickens character Mr. Bumble in "Oliver Twist. When Bumble was informed that the law supposed that his wife acts under his direction, he replied "If the law supposed that, the law is a ass . . ."
Nevertheless, as flawed as this supposed ruling was, the case became a solid precedent laying the foundation for transforming a mere legal concept of a non-natural entity, a corporation, into a person equal to natural people entitled to constitutional protection.
From that point on, all state laws and regulations dealing with corporations were now subject to court review. For example, while states could still regulate railroad rates, they could not fix the rates so low as to deprive the railroad corporations of their property, which includes profits, without due process which was now a matter for the courts. This effectively took the slingshot away from ordinary Americans who could not use strict state regulation to keep corporations in check.
One does not have to be a legal scholar to figure out that the Founders did not intend to consider corporations as persons entitled to constitutional rights, and that the court engaged in raw judicial lawmaking by simply making it so. But what is equally troubling is the Supreme Court's obvious rewriting of the 14th Amendment contrary to its actual intent.
The 13th Amendment (banning slavery), the 14th Amendment (banning states from depriving a "person" of life, liberty or property without due process and barring the denial of the equal protection of the law), and the 15th Amendment (banning the denial of voting based on race or color) were all adopted in the wake of the Civil War and clearly were intended to protect the then freed slaves as citizens of their various states. This is how the court first interpreted these amendments. But the court then simply shunted the newly freed slaves aside with cases like Plessy v. Ferguson and its separate but equal doctrine which legitimized Jim Crow laws and turned the 14th Amendment into a piece of constitutional armor to protect the corporate Goliaths.
We were recently reminded of just how big and powerful corporations have become. The Obama administration told us that some of them are now too big to fail. The big insurance corporations' ability to seriously challenge the president, a majority of Democrats in Congress and 65 percent of ordinary Americans, according to a recent poll, demonstrated their strength in the effort to prevent health care reform.
Robert "Frank" Jakubowicz is a Pittsfield lawyer and a regular Eagle contributor.
"Gun owners' duty"
By Robert "Frank" Jakubowicz, The Berkshire Eagle, Op-Ed, Wednesday, November 11, 2009
Ironically on the same day that a shooter went on a rampage at Fort Hood and shot 13 people dead and wounded 29, oral arguments were taking place in two cases before the Massachusetts Supreme Judicial Court challenging state gun control laws. Both these incidents reflect what is going on in America with the gun issue.
The name of the Texas gun store "Guns Galore" where the Ft. Hood shooter reportedly bought at least one of his guns exemplifies the proliferation of guns in America which in part is responsible for the gun violence in the nation. Meanwhile these court cases illustrate the constant legal sniping against laws to impose at least some regulation regarding the problem of gun violence.
In the case of Commonwealth v. DePina, the defendant convicted of unlawfully carrying a loaded firearm and the unlawful possession of ammunition without a firearm identification card, is challenging the constitutionality of the state laws under which he was convicted. And in the other case of Commonwealth v. Runyan, the defendant is challenging the state law requiring the safe storage of firearms in a home. The decisions in both cases are pending.
These court challenges are based on the U.S. Supreme Court case of the District of Columbia v. Heller. The justices in that 5 to 4 split decision ruled that the general ban of all handgun possession was too broad and violated what the court declared for the first time was a constitutional right to bear arms. But Justice Scalia in the majority opinion stated that this right was not "unlimited" and that the court's ruling should not be taken to cast doubt on long-standing prohibitions of firearms in certain situations. It seem reasonable to expect that the Massachusetts court will uphold the challenged state laws as reasonable regulations designed to limit the carrying of a gun, especially a loaded one in public, to law-abiding citizens, and to reasonably prevent gun accidents in their homes.
Until the Supreme Court ruling in the Heller case, gun owners and their organizations were concerned about all gun regulations as steps toward the eventual ban on their ownership of firearms. And this is why they challenged just about every law that regulated gun possession. One of their often used slogans underlying these challenges was that "guns don't kill people, people do."
Now one would think, however, that since the Supreme Court has alleviated this law-abiding gun owners' worst fear by ruling that the government cannot take their guns away because of the constitutional right to bear arms, that both that worn-out and misleading slogan would no longer be used and that their legal and political challenges to reasonable gun regulation would diminish.
But in a Massachusetts case earlier this year, the dissenting justice, Judith Cowin, ridiculed the majority opinion, written by Justice Francis Spina, for implying and reiterating that slogan about guns not killing people.
That case involved a legal challenge to the practice of the Bristol County district attorney of cutting down gun violence in his area by seeking the pretrial detention without bail of every defendant charged with the crime of illegal gun possession under the state dangerous person law. The majority of the court ruled against this practice and Spina in writing the opinion stated that illegal gun possession is a "passive and victimless crime."
Cowin in her dissent stated the obvious that the purpose of a firearm is not passive, rather it is to injure or kill and that the reiteration of that "tired slogan that ‘guns don't kill, people do' (as implied by Spina's opinion is) a dangerous oversimplification. The fact is that people kill people with guns. . . "
It is obvious that firearms were not invented for target shooting or pleasure. The original purpose of guns was the use of such an instrument to defend oneself against deadly force by killing the threatening person, to participate in fighting a war for one's country by killing the enemy and to kill game to survive in a wilderness without today's supermarkets. The operative word is kill. I would add that people are now able to kill many people with guns that they otherwise could not do unarmed, or armed with what are now the old fashioned six shot revolvers or seven shot automatics of the 1960s and 70s.
It should be quite obvious that shooters like the one at Virginia Tech last year and the shooter at Fort Hood could not have caused the massive killings and injuries they did without the use of today's state of the art automatic handguns. It was reported that the Ft. Hood shooter may have used a so-called "cop killer" gun, a FN 5.7 that is powerful enough to penetrate armored vests and can hold up to 31 rounds with an extended clip and a round in the chamber.
My point is that now with the right to bear arms being belatedly declared a constitutional right, law-abiding gun owners and their organizations should, especially in view of the of the latest mass killing at Ft. Hood, support laws to realistically, reasonably and now constitutionally to at least begin the process of finally trying to make some headway in decreasing gun violence.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a former FBI agent and assistant district attorney.
"Not giving thanks for ethnocentrism"
By Robert "Frank" Jakubowicz, Op-Ed, The Berkshire Eagle, November 26, 2009
What do Americans celebrate on Thanksgiving Day? The Pilgrims? They did not introduce the Thanksgiving tradition. Native Americans had celebrated autumnal harvests many years before the Pilgrims arrived, and they helped the Pilgrims survive by providing them with and assisting them in growing food indigenous to America which is today's traditional holiday fare (pumpkins, turkeys, corn, squash, and so on).
George Washington in 1789 proclaimed a day of public thanksgiving for the end of the Revolutionary War and the establishment of a government "of wise, just and constitutional laws." Abraham Lincoln in the midst of the civil war in 1863 made it a national day of public thanksgiving because foreign nations did not use the civil war for aggression against us, that despite the war the North had an increase in business productivity, and that except for a shrinking military war zone there was order in the country. Neither of these presidents mentioned the Pilgrims. They did not become part of the holiday tradition until the 1890s.
Yet every year the basic public theme for Thanksgiving is the feel-good morality story about how the Pilgrims as a civilized, religious, superior and generous group of virtual first Americans landed in a wilderness peopled by inferior savages and then tamed the land and these natives and gave thanks by inviting them to a symbolic first Thanksgiving celebration.
This version of a Thanksgiving story, according to Prof. James W. Loewen in his book "Lies My Teacher Told Me -- Everything Your American History Textbook Got Wrong" is inaccurate and marginalizes Native Americans, who literally were the first Americans, as inferior beings and makes the Pilgrims appear superior by divine-like selection. Loewen points out that the use of this Thanksgiving story with the Pilgrim connection promotes ethnocentrism in American today. If God and righteousness are on the side of America and its culture then our nation and its culture is not only superior to others but it must be the prevailing one.
The Pilgrims were courageous in coming here and they suffered hard times. But the feel-good story of the interaction between Pilgrims and Native Americans is not accurate. By most reliable historical accounts, the Native Americans actually provided for and saved the Pilgrims, and it is important for Americans to know this because it was the ethnocentrism of the Pilgrims that caused troubling issues to develop in this early era of American history with problematic implications for today.
The Pilgrims' view of the Native Americans and their culture was based on the Pilgrims' own standards and values that they considered righteous. Based on this judgment, the Pilgrims found the Native Americans to be inferior and dangerous. Such an evaluation of others and their cultures by a nation or a group based especially on the self-serving notion of the superiority of its own values and culture is ethnocentrism.
My point in retelling the real story surrounding the celebration of Thanksgiving is to put this holiday in perspective. People around the world have engaged in festivities to give thanks for such events as successful harvests, the winning and ending of wars, surviving severe weather and the like since early recorded history. As a national American holiday, Washington and Lincoln expressed similar themes for this day in their Thanksgiving Day proclamations. Washington at the birth of the nation and Lincoln in the face of the biggest threat to that nation, both stressed that Americans should be thankful for their unity and harmony as a nation.
America's birth was unique in that it was not a country unified by ethnicity or religion as were other nations. Americans were unified by a mutual agreement among a culturally and ethnically diverse group of citizens to live by a written set of basic principles known as the Constitution. The nation can be thankful today that, despite the diversity of the ethnic and culture backgrounds of its citizens and their forebears, America has survived and prospered.
Unfortunately, ethnocentrism still plays a role in America, both internally, threatening the nations' unity and harmony, and internationally threatening the tranquility and peace of the nation and the world. We should understand it for what it is. Groups like the teabaggers and others with their signs "Take Back America," and "This Time We Came Unarmed," and the demonizing of the president by depicting him as a Hitler-like figure, and media political commentators like Bill O'Reilly with his on air comment, "I don't care about the Constitution" -- are all using their own beliefs of what the true American values should be to judge other Americans and this is causing disunity. Former President Bush used his personal set values to judge Iraq and other nations as an evil nation and in his words he was doing God's work in trying to vanquish it sowing more disunity.
I am celebrating the holiday at my family gathering by giving thanks for the more than less unity and tolerance of the melting pot of citizens who made this nation what it is, and which has enabled most of us to still have much to be thankful for despite some serious challenges.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"Focus on today's Scrooges"
By Robert F. Jakubowicz, Op-Ed, The Berkshire Eagle (Online), Tuesday, December 22, 2009
‘A Christmas Carol" by Charles Dickens has, unlike the recent seasonal complaints by some about the bad affect of political correctness on Christmas and about a war being waged against the true spirit of Christmas, has persisted as a popular and traditional story being retold every year at this time. The author struck a responsive cord with many Christians and non-Christians by adroitly blending what has become the modern view of Christmas with the Christian moral spirit most people today associate with this holiday.
The American celebration of Christmas has developed over a long period of time based on a mix of religious and non-religious elements. They include ancient winter pagan festivals which together with their symbols and old customs from early European civilizations were brought here by immigrants, the Roman Catholic Church's arbitrary selection of the day to celebrate the birthday of Jesus, Dickens' book, Washington Irving's collection of short stories about the celebration in an English manor house, and the First Amendment's ban on the government's "establishment of a religion." This mix has caused a protracted debate about the commercialization and secularization of Christmas.
Dickens used a simple story as a moral and spiritual lesson to illustrate what has become the spirit of Christmas. He defined that spirit as more of a tradition of joy, sharing gifts, festive celebrations, generosity, caring, social consciousness, and good will rather than formal religious ceremony. This is not to say, that religion did not play a role in his story.
His story involves a divine-like intercession by three spirits to convert his protagonist Scrooge from his "Bah! Humbug" attitude of greed, selfishness, and lack of caring to the Christian ideal of a caring, generous, and conscientious person. The author has Scrooge attending church on Christmas Day after his conversion. And the story ends with the often quoted line: "And so, as Tiny Tim observed, God bless us, every one!."
This story has played a big role in shaping how many Americans now celebrate this holiday with a mix of joyous and festival activities and solemn religious ceremonies. Most Americans are comfortable with such a celebration of Christmas which has continued since the 19th century without any serious ill effects on the religious aspect of the celebration by Christians.
There is no law that prohibits individuals from greeting each other with "Merry Christmas" as Scrooge did after his conversion or for individuals to display religious scenes in homes, private schools or private places of business. The decision to drop the word "Christmas" in private greetings between individuals if a non-Christian is involved is simply a private matter of sensitivity and good manners regarding such a person's differing religious belief.
But the Founding Fathers made it the law with their First Amendment to the Constitution to prohibit the government from establishing a religion. The government, as the Supreme Court has ruled in a number of cases, is prohibited from supporting, favoring or otherwise being involved in activities that promotes one religion over others. For example, the placing of a nativity scene alone on government property, or a classroom discussion in a public school of just one religion belief about Christmas would be obvious violations of this law because it is the singling out of just one religious belief on display by the government. But placing a number of religious symbols from differing religions or discussing all of them as a neutral representation of history would not violate the law.
Those who rail against the effects of political correctness on Christmas and those who claim they are battling a war against Christmas would be well advised to focus their outrage on today's Scrooges. Dickens also used the his Scrooge character to make a social comment about the greed, selfishness and indifference of the wealthy of his day for the common person and especially for the needy. Unfortunately the same can still be said about a wealthy class of Americans today.
It is too bad that Dickens' three spirits are not around to take Wall Street investment bankers and the health care company CEOs on a trip to see the economic havoc and personal harm they and their predecessors caused in the past, the present and what is likely to come in an effort to instill the spirit of Christmas in them. The bankers should be forced to personally see how their greed in bundling bad mortgage loans as securities and betting on business failures without funds to back those bets brought this country to the brink of an economic depression and the present destructive effect of mortgage foreclosures and unemployment.
The insurance company CEO's should be forced to personally see how their greed for wealth by their past cancellations and denials of coverage with arbitrary increases of premiums placed many Americans in personal and economic peril with the present annual deaths of 44,000 because of the lack of coverage. These Scrooges should also be shown the bad things yet likely to come from their present lobbying of Congress not to regulate their investment banking and reform health care coverage.
Merry Christmas to those who celebrate the holiday! Happy holidays to those who don't! And bah, humbug to today's Scrooges!
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular contributor to the Eagle.
"Spin in an easily spun nation"
The Berkshire Eagle, Op-Ed, By Robert "Frank" Jakubowicz, 1/16/2010
Spin is a relatively new word in politics. It is supposed to make lying appear respectful. It is meant to twist words and facts to control what people believe. And it is used to turn a negative incident into a positive one.
But the concept of spin is as old as the story of Adam and Eve. Adam is thought to be the earliest example of using spin by blaming Eve for everything that happened after he bit the apple. And spin continues as an ongoing political trick with serious implications for the nation’s governance.
Hopefully the about face by President Obama from his administration’s initial spin that the system worked to prevent the Christmas Day bombing of an airliner to an admission that the system did not work signals a serious intent by him to put a halt to further spins by his administration. But this remains to be seen because spin is an ingrained part of our society not only in politics but in other institutions such as advertising and public relations. This has happened, according to Daniel J. Boorstin, a Librarian of Congress member and author, because of the tendency of Democratic societies to become more concerned with what people believe than with what is true.
What Americans believed had a lot to do with the invasion of Iraq. Former Assistant Secretary of Defense Paul Wolfowitz in a Vanity Fair interview said that, "for reasons that have a lot to do with U.S.government bureaucracy, we (the Bush administration) settled on one issue everyone could agree on, which was weapons of mass destruction" This was the spin. But the actual reason (the truth) was regime change in Iraq. In other words, Wolfowitz and his war hawks in the administration decided the public would readily believe the menace of WMDs as the justification for the invasion.
Bush’s National Security Advisor Condeleezza Rice pushed this spin further with her public statements about not waiting for a mushroom cloud from Iraq. The punctuation mark for this spin was the now infamous statement by Bush’s Central Intelligence Director George Tenet that it would be a "slam dunk" for Bush to use the treat of WMD to invade Iraq. This control of the public’s perception about Iraq has caused a lot of unnecessary spilling of blood and American money.
One of the insidious aspects of political spin is that it takes on a life of its own and impacts legislation. For example, Sarah Palin in a Facebook statement charged that the health care reform bill would create "death panels." This pulled Iowa’s Republican Senator Charles Grassley, one of his party’s key members working on the bill, into the spin to proclaim that the bill would "pull the plug on grandma." Despite the fact that there was no provision for such panels, a Senate cowered by this spin removed a sensible provision in the bill for the medical counseling of patients about end of life issues. And the Senate has been on the defensive in dealing with the legislation ever since because of other spins such as attempts to make the public believe this was part of Obama’s socialist agenda.
Now former elected Republican officials and current officials are taking spin to another level, namely presenting a solid front of public spin that Obama is a failure as president. Unlike the past there are no responsible GOP party leaders with the courage to call out their fellow party members for flouting the truth with their current barrage of spins. One of today’s leaders is Vice President Dick Cheney. He has become involved in an unprecedented attack by a former vice president against a sitting president. His big spin is the lie that Obama is weak on defense and security and to hide this shortcoming, according to Cheney, Obama is "trying to pretend we are not at war" with terrorists in a effort to falsely portray Obama as being weak on defense and security.
Rep. Peter King (R-N.Y.), the ranking minority member on the House Committee on Homeland Security, joined in by saying that Obama has "to use the word terrorism more often" to show that he is serious about defending the nation. Republican leaders in both branches of Congress express unanimous support for this accusation.
Not to be left out of this whirlpool of twisted facts and lies, former New York mayor Rudy Giuliani in a recent ABC televised interview claimed that no acts of domestic terrorism took place while Bush was president. Giuliani had selective amnesia in leaving out the 9/11 attack and the attempt by the so-called shoe bomber to down an airplane when Bush was in office. George Stephanopoulos, who conducted the interview failed to call out Giuliani for his misstatement.
Political spin is designed to control what people believe. And once people come to believe something, true or untrue, it is almost impossible to argue with them. The media in the case of all political spins can do a much better job in calling out the spinners. The Democrats in case of the current spin about Obama being a failure as a president by a solid front of Republicans should stand up and call out the Republicans.
It is time for the public to make a much better effort to smarten up and understand spin for what is: lying and mind control.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"A botched ruling on torture"
By Robert F. Jakubowicz, Op-Ed, The Berkshire Eagle, February 23, 2010
The Justice Department has left the door open for future presidents to obtain legal justification for enhanced interrogation techniques (EIT), such as torture by waterboarding. A senior department lawyer reduced an earlier, serious finding of "professional misconduct" to a mere slap on the wrist finding of "poor judgment" against two lawyers in the department's Office of Legal Counsel (OLC) who authored the flawed legal opinion to former President George W. Bush to justify his ordering of these techniques.
This ruling by senior department lawyer David Margolis was made public last Friday, the day when presidential administrations traditionally release bad or controversial news in the hope that it will pass unnoticed over the weekend. Margolis, a 42-year veteran of the department who reportedly handles intra-departmental problems, concluded that the legal memos by these lawyers were flawed. He conceded that the question of professional misconduct was a close one, and called this episode "an unfortunate chapter in the history" of the OLC. He then glibly employed the trite adage that, "all that glitters is not gold," before he went on to conclude that there was no such misconduct on the part these lawyers, adding that the actions of the lawyers were taken out of context because of the uncertainty and fear right after 9/11 when the opinions were written.
After reading his memo, I thought it looked like a department spin to cover the OLC. President Obama has disappointed many Americans by refusing to have his administration investigate and prosecute those engaged in torture during the Bush administration. The president's public rationale for this was that the perpetrators relied on a legal opinion, albeit erroneous.
This was a further disappointment because it is contrary to the war crime precedent of the Nuremberg Trials of Nazis after WW II, namely, that obeying unlawful orders is not a defense for committing acts of torture and other atrocities. But until Margolis's ruling there was a hope that if at least the authors of the erroneous legal opinions on torture were subjected to severe punishment then future government lawyers would be sufficiently deterred from doing this for future presidents.
This would have been the case if the findings of the department's Office of Professional Responsibility (OPR) were allowed to stand. These initial findings of professional misconduct by the lawyers would have likely resulted in serious state bar sanctions. The lawyers involved would have been subject to disbarment and the one who is a federal judge would have faced impeachment. Margolis's watering down of the finding to "poor judgment" is likely to enable the lawyers to avoid consequences.
The OPR, which is the lawyers' ethic arm of the department, issued a July 2009 report, five years in the making, concerning now law school professor John Yoo and now federal Judge Jay Bybee, who authored the legal memos. The report singled out Yoo as being primarily responsible for ensuring that department legal opinions to the White House were "thorough, objective, and candid." The report stated that the evidence warranted a finding that Yoo "committed intentional professional misconduct" by violating "his duty to exercise independent legal judgment and render" such legal advice to the president. The report also stated that Yoo knew that the White House wanted a legal opinion to justify "outright torture," especially waterboarding, and that he "knowingly" provided it when he should have known better from a legal standpoint.
Bybee, according to the report, used some non-relevant court cases, unrelated federal laws, and a law review article as the legal basis for his "erroneous" and oversimplified opinion about criminal guilt for torture. He essentially gave his own opinion without a legal basis. His interpretation was that if someone specifically intended to obtain information from an individual and in the process inflicts severe pain and suffering then this does not violate the law. In other words, if you specifically intend to get information from someone rather than injure him, but hit him in the head with a hammer in that process for that purpose, you are not guilty of a criminally assaulting that person. The investigators asked Bybee about the simplicity of the opinion. He replied that he kept it simple because it was written for "sophisticated executive branch attorneys" well versed in the legal complexities of such issues. But nobody ever accused Bush Attorney General Alberto Gonzales of being such a sophisticated lawyer.
When Yoo was questioned about the Bybee opinion that he passed on to the White House, he said he looked at the legal references "quickly" and that since the law on specific intent was "confusing" and "messed up" he relied on Bybee. What in effect was messed up, according to the OLR report, was Bybee's conduct which was found to be "professional misconduct" for the "reckless disregard" of his duty to exercise "independent legal judgment in rendering thorough, objective and candid legal advice." Yoo put a exclamation point on this counseling of the White House with his opinion that the president as a war-time commander in chief is above the law. Even Margolis recognized this as an "extreme" personal view of executive power by Yoo. But Margolis excused Yoo because he "feared" Yoo's "loyalty" to his own ideology made him fail to appreciate his enormous responsibility to issue authoritative weighty opinions of the department to a president.
Incredibly the consequences of the erroneous opinions (the commission of the crime of torture) and the future implication of such opinions (a mere slap on the wrist for government lawyers) were not addressed in this matter. Lawyers in a position to counsel a president who render flawed or erroneous legal opinions to justify the commission of a crime should at the very least be subjected to severe professional punishment.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular contributor to the Eagle.
"’Honest services’ before the court"
Robert "Frank" Jakubowicz, The Berkshire Eagle, Op-Ed, March 5, 2010
Last Monday the U.S. Supreme Court heard arguments in the last of three cases it accepted for review which involved the controversial federal mail and wire fraud law which criminalizes a "scheme" to deprive someone of "honest services." This law is a favorite of federal prosecutors who have used it frequently and successfully to convict public officials and business executives. Criminal defense lawyers have decried this law as being unconstitutional for reasons of vagueness and hope that the court in an anticipated June decision on these cases will strike this law down.
One of the well-established legal principles of criminal law is that a law must clearly define the act or scheme it is criminalizing. Lower federal courts have wrestled with trying to define what acts constitute the deprivation of "honest services." Supreme Court Justice Antonin Scalia criticized this law for its vagueness. He reportedly said that it could be used to prosecute "a mayor for using the prestige of his office to get table at a restaurant without a reservation."
This is an exaggeration, but consider the pending State Ethics Commission case against Pittsfield Mayor James Ruberto and baseball entrepreneur Dan Duquette. If Ruberto used the mail or a wire (e.g., telephone or e-mail), to discuss the Red Sox tickets he purchased from Duquette while they negotiated an agreement for the latter’s baseball team to use a city park, the mayor potentially could be subject to prosecution under this federal law.
One of the three cases that was heard earlier by the court involved Bruce Weyhrauch, a state representative in Alaska, who solicited legal work from an oil company while the company sought to have the state lawmakers lower taxes on oil companies. Alaska’s state law did not require Weyhrauch to disclose this search for legal work by him as a conflict of interest.
Nevertheless federal prosecutors charged him with violating the "honest services" law on the basis that he had a duty to disclose his conflict of interest. A federal appeals court ruled that even though the state law did not require such a disclosure, Weyhrauch had a duty to do so and by not doing this he deprived the citizens of the state of "honest services" by a public official and could be charged under this law.
Massachusetts has a public officials ethics law prohibiting them from acting in a manner causing a reasonable appearance that they can be improperly influenced or favored in performing their duties. The emphasis is on appearance.
This law also prohibits them from using their position to obtain something of substantial value not readily available to other similar individuals. In the Pittsfield case the circumstances could reasonably appear to some as involving the improper influence of a public official who used his official position to obtain hard to get sport tickets not readily available to other city public officials.
My point here is not to make a federal criminal case against the mayor, but to illustrate the broad sweep of this virtually open-ended definition of "honest services" under the federal criminal law which could be used for prosecutions in cases like the Pittsfield example. A case which in my opinion merits no more than a State Ethics Commission hearing to determine if a public official violated the strict appearance of influence and use of a official position to obtain an unwarranted benefit part of the state public official ethics law.
Federal prosecutors favor the use of the deprivation of "honest services" law against public officials where there is the appearance of bribery or conflict of interest because these cases are easier to prove. For example, the federal prosecution of former Massachusetts House of Representatives Speaker Salvatore DiMasi is based mainly on his alleged violation of the deprivation of "honest services" law. The prosecutors allege that he received payments from a company that obtained a multimillion dollar software contract with his help as a legislative leader from the state.
DiMasi denies this and contends that as a part-time lawmaker he was allowed to practice law and that these payments were for legal work by him. The prosecutors’ case would be more difficult if they had to establish the facts beyond a reasonable doubt for bribery, the quid pro quo of the awarding of the contract directly for the payment to DiMasi. But they do not have this legal burden under the "honest services" law which involves essentially the establishment of the appearance of bribery. A Supreme Court decision striking down this law would be a serious blow to the federal case against DiMasi.
This use of this federal law is not confined to public officials. The last of the three cases heard by the court involved Enron’s chief executive officer Jeffrey Skilling who in addition to other charges was also convicted under the "honest services" law for depriving company stockholders of such services. He was found to have made false statements about the company’s financial stability just before he sold his stock for a $15 million dollar profit and the company went into bankruptcy.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"The irrefutable Jefferson"
By Robert "Frank" Jakubowicz, The Berkshire Eagle, Op-Ed, July 4, 2010
Thomas Jefferson, until this year, was revered in American history textbooks as the Founding Father who wrote the Declaration of Independence. His document is the reason we celebrate the fourth of July as this country's independence day. This is a holiday to remind Americans about the history and significance of that document.
But earlier this year, religious conservative members of the Texas Board of Education decided to push for a revision of this history by downplaying Jefferson's influence in the founding of our nation because the notion of the "separation of church and state" has been traced to him. These religious rightists believe this country was founded as a Christian nation and decided to make their point by revising American history in their public school text books. The effect of this kind of revision of American history would be to celebrate the founding of this country as a religious event rather than the secular event it is.
One does not have to be an American history scholar to understand that the American Revolution was not fought as a religious war against anti-Christian forces or an Antichrist. It occurred as a reluctant solution to a struggle by colonists against an imperial British government. The leaders of the Revolution considered this rebellion a secular matter. Their goal was to establish the colonies as free and independent states concerned with matters of this world and the new land in which they existed, rather than establish a Christian nation.
As a matter of historical fact, America entered into the Treaty of Tripoli in 1797 which included in part the following statement: "the Government of the United States of America is not, in any sense, founded on the Christian religion". I wonder if the Texas Board would consider inserting this item in their textbooks?
The drafting of this treaty began during George Washington's presidency. The final draft was read in full in the Senate where it was approved unanimously and then signed by Washington's successor, President John Adams. The full text of the treaty was also published in three American newspapers in Philadelphia and New York. The American diplomat who authored this treaty was a close friend of Jefferson.
Jefferson made history with the help of John Adams and Ben Franklin in writing the Declaration of Independence to abolish British colonial rule. His document, as noted by Karen Armstrong in her book "The Battle For God," was an "Enlightenment" document, not a religious one. It was based on an 17th and 18th century political theory of philosophers like John Locke and others which was considered self-evident to Jefferson's generation. This political theory is at the heart of the document we celebrate today, namely, that individuals "are created equal" with rights to "Life, Liberty, and the pursuit of Happiness" to be secured by a government empowered by the consent of the governed.
Jefferson, according to American historian Gordon S. Wood, later explained that his purpose with this document was to firmly and plainly state self-evident, common sense principles with which sensible people would agree and which would justify the colonist's independence.
Jefferson's Declaration of Independence approved by Congress on July 4, 1776 was read in public just a few days later in Philadelphia to the ringing of bells and band music. The following year it was observed in the same city with an adjournment of the Continental Congress and celebrated with bonfires, the ringing of bells, fireworks and a parade. The celebration then spread nationally.
The Massachusetts legislature passed a resolution to celebrate the event in 1781 and Boston was reportedly the first municipality to do so in 1783. The celebration of this day in cities like Pittsfield with its big parade and fireworks display and similar celebrations in other parts of Berkshire County and throughout the nation differ little from the earlier celebrations that have been ongoing for 234 years. The Pittsfield Parade Committee and its volunteers not only put on a great entertainment spectacle they continue a great tradition to honor one of the key historic events of the birth of this nation. This is a day to memorialize the country's independence in breaking with the old order of governance and going forward with one based on new ideas.
It is fitting that such celebrations continue because the idea of human rights expressed in the Declaration of Independence is indeed timeless and self-evident. These rights expressed by Jefferson became an important part of the Constitution through the first 10 amendments (the Bill of Rights) and the 14th Amendment. They also served as a basis for reform movements elsewhere.
His memorable words have become immortal and shame on the Texas Board of Education for trying to downplay him and his document as important parts of American history.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"A new Pittsfield for next 250 years"
The Berkshire Eagle, Op-Ed, August 12, 2010
The upcoming 250th anniversary of Pittsfield next year is a good time to not only celebrate the longevity of this community, but also to take up the challenge of how to make and keep the city a viable smaller community after being downsized from a bustling, major economic presence, largely because of General Electric.
Pittsfield became a GE-driven research and manufacturing powerhouse mainly because of the presence of a local electronic genius in the late 1880s and a politician who knew how to bring home the bacon from Washington. William Stanley developed the transformer in Great Barrington and established the Stanley Electrical Manufacturing Company in Pittsfield to manufacture and sell his invention. General Electric later purchased his company and carried on as a world leader in electronic innovation, and with the advent of World War II, GE expanded into ordinance.
It was Pittsfield Congressman Silvio Conte who put his political magic to work to by delivering government defense contracts to GE when its transformer business began to wane because of international competition. GE was able to continue as a large manufacturing and research concern because of these government contracts and Pittsfield continued to prosper while other New England communities suffered economic woes with the closure of their many textile plants.
It is fair to say that but for Stanley's presence, his electronic invention, and his company no other large company like GE would have opened a large plant in an isolated place like Pittsfield. But for the political clout of Conte, GE would not have been able to continue a large scale business in ordinance with its waning transformer business. Thus GE was able to carry on this business well beyond other manufacturing companies, large and small, who could not compete in a new global market.
But with the end of the Cold War and the drying up of defense contracts, GE was not making enough of a profit for its then highly aggressive leader Jack Welch. He decided to phase out its large defense manufacturing operation, close down its transformer business and eventually leave Pittsfield with only memories of it former great manufacturing colossus.
This downsizing created economic havoc in Pittsfield and the surrounding area. At that time in the 1980s, Carl Nordstrom, at his retirement party as the chairperson of the Berkshire County Regional Planning Commission, posed a challenge for Pittsfield's officials and residence that still resonates in my mind. He said Pittsfield would now become a much smaller community with the loss of GE, and that everyone in the city must plan accordingly. He was asked by city officials what such planning should be. He said he did not know and that the officials would have to figure it out.
Almost 30 years after Nordstrom's challenge, Pittsfield officials are still having problems in making adequate plans for Pittsfield's downsized economic population status. One good starting point would be to finally get rid of the notion that economic lighting would strike again like it did with the combination of Stanley's innovation to lure a big company and Conte's political clout to help sustain it. And they should understand that Pittsfield will never return to its prior economic status with the presence of a large employer or a number of smaller employers.
A testament to the lack of any such employers interested in establishing a business here is the vacant former GE site despite intensive marketing by local officials, site renovations and cleanup. This should convince local officials that the odds of finding such an employer or employers are not very good despite the wishful use of Stanley's name for the former GE site.
I am not a municipal planner, but I have suggestion as an example of the sort of things Pittsfield officials should be thinking about in making adequate plans for a smaller Pittsfield to succeed. Why not market the housing stock in Pittsfield to summer residents and retirees from other parts of the nation as good buys in a community now building up its arts and winter activities? With the aging population and the continuing loss of population, many old but attractive and well built houses are becoming available in Pittsfield at good prices.
In the past, Pittsfield with its sprawling GE plant campus was considered by other county residents as the place to buy hardware, appliances, cars and have them fixed. It was the hardware city of the county. But now that it is trying to transform itself into one of the art and tourist communities in the county, it should consider a marketing strategy to invite those home buyers here to enjoy the attractions here.
The city has a lot more to offer than smaller towns with its full-time police and fire protection, public works, garbage collection and the like. The upcoming anniversary is a good time for innovative thinking to keep this city going as a viable community, albeit smaller than its former self, for another 250 years.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"Founders' great wisdom"
By Robert "Frank" Jakubowicz, Op-Ed, The Berkshire Eagle, November 11, 2010
There is a history lesson in the recent congressional election about the constitutional separation of powers that is not generally taught as part of American history in the nation's schools. Americans basically are taught that it is an innovative political concept of fragmenting power to avoid dictatorial rule by one branch of government. But there is more to understanding the concept and how it effects the nation today.
First, there is the irony that the Founding Fathers, the idols of tea partiers, intentionally created the federal government machinery that blunted the electoral energy generated by the Tea partiers for a majority of voters to vent their displeasure over a stagnant economy by making a complete congressional sweep.
James Madison was concerned that a majority of Americans in the future might get complete control of the government machinery in one fell swoop. The Founders were frightened of this specter of democracy. And what happened in the recent congressional election to prevent such a clean sweep in both branches of Congress was the effect the Founders intended by not only dividing the three branches of government, but by dividing Congress against itself with two separate chambers.
The voters' wave in the last election to send a message of displeasure over legislative inaction by voting the incumbents out of office and electing a new majority was blunted because of the Founders' separation of legislative powers to ensure the retention of an old, stable Senate majority.
According to the husband and wife team of American historians Charles A. and Mary Beard, the constitutional convention delegates tossed "about restlessly for several days" before opting for the separation of powers system, instead of direct restrictions in the Constitution on voting and office holding, as their way to "dissolve the energy of the democratic majority." The House of Representatives, with two-year terms and all seats up for direct election by the people, was created to afford the mass of people a hearing in the government.
But, as the Beards point out, a "strong Senate" was created as an obstacle to block any abrupt and drastic changes in the House caused by the electorate. Senators with six-year terms and with only one-third of their members up for election at any one time and originally elected by state legislatures (until a 1913 constitutional change for direct public election) were intended to constitute a safe majority of veteran members, undisturbed in their places to block any sweeping changes in the House of Representatives.
The history lesson here for the tea partiers, with their colonial costumes and signs calling for a return to the government the Founders intended, is that the Founders they emulate did not envision a democratic nation in which the mass of American voters could take control of the federal machinery of government. Madison underscored this point in a speech he reportedly made at the constitutional convention. He said that there would come a time when the "Landholders," the wealthy class in early America, would be greatly outnumbered by the masses and that the Senate "ought to be so constituted as to protect the minority of the opulent against the majority."
Another history lesson for all Americans from the run-up to the recent election is to understand the underlying basis for the inability of Congress to act on the key issues of the day. It is not a failure by the president and the recent Democratic majority in Congress to "listen to the people" as the Tea Party and the Republican Party would like the public to believe. It is, according to Williams College Professor of Government Emeritus James MacGregor Burns, the Founders' governmental machinery that accomplishes their goal of a government without power to meddle significantly in the lives of Americans.
In the Founders' view the safety and well-being of the people required a limited government with fragmented powers subject to tight checks and balances. This has become institutionalized in our government by the constitutional requirement that each branch of government, including the two congressional chambers, has to agree before any law is passed. This has caused more than less federal government inaction. It has prompted a revival of jokes like the one about never sitting next to a congressman at a dinner table because they never pass anything.
In reality it is a system of government that makes it possible for just one narrow-minded political leader like Senate Republican Minority Leader Mitch McConnell to halt just about all congressional business because he is hell-bent on making President Barack Obama "a one-term president." The ability of just one elected official to cause congressional gridlock is one of the bad legacies that the nation inherited from its Founders.
It is important today to understand American history to better understand what is going on in our electoral and governance systems. A better understanding of what the Founders intended with their fragmentation of powers and how it effects government today might have caused a different election result.
It may have persuaded more Americans that voting impulsively to throw incumbents out of office and replacing them with uncompromising individuals with unconventional views will only add more friction to the Founders' machinery of government with its built-in gridlock to prevent an active government.
Robert F. Jakubowicz is a regular Eagle contributor.
"A stuffed turkey for all of 2010"
By Robert "Frank" Jakubowicz, Op-Ed, The Berkshire Eagle, November 24, 2010
My turkey of the year award goes to Senate Minority Leader Mitch McConnell (R-Ky). While Thanksgiving is just one day for stuffed turkeys for most Americans, most politicians are full of themselves all of the time. McConnell earned this uncomplimentary distinction for strutting his stuff more than any other politician to the detriment of governing the nation. And a dishonorable mention goes to Fox News Director Roger Ailes for continuing the marginalizing of Native Americans that began with the traditional story of Thanksgiving.
McConnell earned his award for two reasons. One, was his blatant, political cynicism for vowing that the "single most important thing" he wants to achieve as the senate Republican leader is for "President Obama to be a one-term president." His agenda in the Senate will be continued legislative gridlock and continued political campaigning against the president and Democrats to cause their defeat in the 2012 election.
These Republicans like to say they want the government to operate according to the Constitution. That document charges federal lawmakers with making laws to govern the nation. And it makes no mention of political parties nor party members as elected lawmakers conducting political campaigns in office as part of their duties.
The other reason was McConnell's hypocritical political chutzpah. According to former President George W. Bush book "Decision Points," McConnell privately met with Bush in 2006 to plead for a troop reduction in Iraq to help the GOP election prospects in the upcoming election because otherwise the Democrats would take control of Congress. McConnell, a leading supporter of the Iraq war, declined to comment on Bush's revelation. It would be fair to say that McConnell is a two-faced politician who put a political party election win above the life and limb of American troops and Iraqi civilians in that war.
On tomorrow's holiday we should be thankful that since FDR's presidency this country has had a more than less mix of enlightened, progressive, and conservative elected officials, unlike do-nothings like McConnell, who actually worked together to govern this country. And that this history bodes well for a resurgence of such national leadership despite what is going on in politics today.
In addition to being a holiday for things to be thankful for, there continues to be lingering tradition to celebrate our colonizing Founding Fathers, the Pilgrims. The made-up, feel good story is that they, as God's chosen people in their Sunday best, invited a group of inferior, heretical, scantily clad, savage Native Americans to share in their bountiful harvest as a celebration for their survival and prosperity. Factually the reverse is true.
It was the Native Americans who saved the Pilgrims by providing them with food and showing them how to produce it. And long before the Pilgrims landed, people all over the world, including Native Americans, celebrated autumnal harvests.
But there is a more significant part to this story than its inaccuracy as noted by James W. Loewen in his book, "Lies My Teacher Told Me: Everything Your American History textbook Got Wrong." According to Loewen it marginalizes Native Americans and it created American ethnocentrism. That is, the notion that this nation has God on its side and therefore it is superior to other cultures, as exemplified by the idea of the superiority of the Pilgrims over the Native Americans. Today for example this ethnocentrism is echoed in the public statements by demagogues like Sarah Palin who essentially say that we are the greatest nation in the world because God is on our side.
Roger Ailes recently reinforced the marginalization of Native Americans by panning President Obama's new book for children, "Of Thee I Sing: Letters to My Daughters," because the president praised the "Indian chief" who "killed" a U.S. general. Actually it was not a general but Lieutenant Colonel George Custer and there is no evidence that the chief, Sitting Bull, killed Custer. In addition to Sitting Bull, Obama singled out a number of other individuals in his book, including Helen Keller, Albert Einstein, and Martin Luther King, Jr., to inform young readers about them and their exploits.
Sitting Bull was respected by his people as a wise medicine man who spoke out against the government's treatment of his people. And he was defending his weary people, including many women and children who were resting at the Little Bighorn from the dogged pursuit by the cavalry, against Custer's surprise attack. Custer and the U. S. cavalry were not goodwill ambassadors to Native Americans. They were part of the effort begun with the European colonization of America to force these natives, branded as "hostiles" and "savages," from their lands and in the process to kill most of them, and place the small number of survivors on reservations. Loewen reported that Hitler is supposed to have admired these "concentration camps for Indians," and praised "the efficiency of America's extermination -- by starvation and uneven combat' " as a model.
So when you think about the traditional story of Thanksgiving, it would be well to think about these words from a speech a Massachusetts Wampanoag was not allowed to read by the state Department of Commerce in 1970 at the 350th anniversary of the landing by the Pilgrims: "Today is a time of celebrating for you -- but (not) for me -- (when) I look back upon what happened to my people. What happened cannot be changed, but today we work toward a better America."
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"Jakubowicz is too soft on DiMasi"
The Berkshire Eagle, Letter to the Editor, July 5, 2011
In response to former Rep. Robert Jakubowicz’s wide ranging, rambling June 28 op-ed column asking the question of what Sal DiMasi, the convicted felon and former speaker of the Massachusetts House, deserves for jail time, the answer is he deserves serious jail time and the forfeiture and sale of property in order to pay back the citizens of this state the amount of any monetary gain he realized.
Jakubowicz certainly presented all the arguments for being lenient on Sal and a limited amount of reasons for applying the maximum penalties, but that can be forgiven seeing that Mr. Jakubowicz is a former member of the House and understands what the standard operating procedures for public officials are.
"What constitutes justice for DiMasi?"
The Berkshire Eagle, Op-Ed, By Frank Jakubowicz, June 27, 2011
‘I think he deserves what he gets," said a person in former House speaker Salvatore F. DiMasi's neighborhood after the latter was found guilty of conspiracy, extortion and theft of honest services. DiMasi is now awaiting sentencing by a federal judge. But what convicted criminals like DiMasi in particular and others in general justly deserve for their crimes remains a perplexing question in the criminal justice system because prosecutors, defense lawyers and judges differ over what a just punishment is.
U.S. Attorney Carmen M. Ortiz, whose office prosecuted DiMasi, thinks his punishment should be "a significant jail sentence'' so that justice will be served. Obviously DiMasi's lawyer will be seeking no jail time which he will argue is the just sentence. The judge who will impose the sentence is charged, like all judges, in meting out a just sentence. Meanwhile, I am certain there is a wide difference of public opinion as to what DiMasi deserves.
Under our criminal justice system, criminals are prosecuted in the name of the people. In DiMasi's federal court trial it is the people of the United States versus him. The people entrusted the defining of crimes and more to my point of fixing just penalties for such crimes are state and federal lawmakers. These elected officials are no more knowledgeable than the public who elected them as to what constitutes a just punishment that fits both the crime and the criminal. Worse, these lawmakers do play politics in fixing punishments such as three-strikes penalties to mandate long jail sentences for criminals convicted three times for crimes and mandating jail time for certain crimes to foster a political image of being tough on crime. Generally state legislatures and Congress fix criminal penalties with wide ranges from probation to long jail time, thereby kicking the issue of an actual criminal penalty to a trial judge to figure out a just penalty within the broad limits of a minimum and maximum limits in the law For example, by law the trial judge in the DiMasi case can sentence him to non-jail punishment like community service with probation, or up to a reported maximum of 20 years in prison.
Over the years, a concern had been raised over such wide ranging discretion left to trial judges because it resulted in a lack of uniformity in sentencing. Criminal defendants before different judges, in different states and in state and federal courts were receiving differing penalties for the same crimes. This led to judicial, criminal justice and legislative panels establishing recommended sentencing guidelines within the wide ranges of these possible penalties to guide judges in imposing more uniform sentences. In DiMasi's case, the federal sentencing guidelines recommend a jail sentence in the 10 year range for the crimes he has been convicted of, but judges can still vary that range depending on the circumstances.
Judges do have the advantage over the lay public by virtue of a legal education, varying degrees of legal experience in a criminal law practice before they are appointed to the bench, and hearing criminal cases as judges. But such experience does not make them any more knowledgeable than the lay public as to what constitutes a just penalty that fits both the crime and the criminal. They essentially impose sentences not based on a concept of justice, commonly understood as a fair and reasonable treatment of somebody, but based on the following well-known theories of practical penalties: protection of the public (removing the threat of a violent criminal from the streets; reformation (rehabilitating the criminal); retribution (the criminal owes a debt to society which is paid by imprisonment, the old eye for and eye view); and deterrence (sending a message to deter potential criminals by placing them in fear of the consequences serious punishment).
So what factors will the judge consider in DiMasi's case. He certainly does not appear to be a threat to the public to be removed from the streets of Boston. Nor does he appear to need rehabilitation. One likely factor the judge will consider is that DiMasi owes a debt to the public because he defrauded the public of his honest services as an elected official and he owes the public jail time. Jailing public officials has become a favorite of judges based on what has become a seemingly common view by them that such officials are to be treated differently from other defendants because of their positions of public trust.
The judge is likely to consider the factor of deterrence with a significant "long sentences'' to send the message to other elected officials of the consequences of violating the law while performing their duties. One wonders whether sending such messages has any effect in view of all the messages already sent with the criminal consequences for two former House speakers and jail time for a state senator and Boston city councilor.
So what does DiMasi deserve? This is an issue that should be a matter for public discussion for the benefit of the judge since he was prosecuted in the name of the public and held high public office. What do you think he deserves?
Robert "Frank'' Jakubowicz, a former state representative, is a regular Eagle contributor.
"America's brilliant forgotten founder"
The Berkshire Eagle, Op-Ed, By Frank Jakubowicz, July 4, 2011
The Declaration of Independence adopted on this date 235 years ago is the reason for today's national celebration. But, according to the Department of Education's recently released results of a study to evaluate knowledge and understanding of American history, only 35 percent of fourth graders know the purpose of this document. Based on the general lack of knowledge of American history in this country, most adult Americans probably do not know the story of the important contributions of George Mason to the writing of the Declaration of Independence, the Constitution and the Bill of Rights. It is a story worth telling today.
These are not documents, as tea partiers insist today, that were divinely inspired at a sacred founding of this country. They were written by humans who adopted ideas and words from other fellow humans. Thomas Jefferson used Mason's ideas and words in writing the Declaration of Independence. Mason adopted ideas from the many books in his uncle's library. The Constitution, mainly known by most Americans for its Bill of Rights, did not contain those rights in its original form. Advocates for such rights like Mason had to campaign and lobby for their addition to the Constitution.
Such an adoption and change of ideas is the story of the drafting and use of these documents. Making the idea of all persons equal with certain unalienable rights has been a work-in-progress since the founding with slavery and unequal treatment of others, including women, by constitutional changes and updated interpretations of that document.
Mason lived in Virginia. His father died while he was still a young man and he was brought up by his uncle who was renowned in the colonies for his extensive library. Mason read many of those books. He eventually became one of Virginia's wealthiest planters and was a neighbor and friend of George Washington. He was elected to the Virginia House of Burgesses and became a critic of British policies toward the colonies. He was largely responsible for writing the Virginia Declaration of Rights which was unanimously adopted in June 1776 at the Virginia state constitutional convention.
This Declaration of Rights was not only the forerunner for the Declaration of Independence, but for the Constitution and the Bill of Rights. It contained 16 Articles from which Jefferson adopted some of the ideas and wording for his writing of the Declaration of Independence. For example, Mason wrote: "That all men are by nature equally free and independent and have certain inherent rights life, liberty and pursuing happiness That all power is vested in the people.'' Jefferson wrote: that all men are created equal endowed by their Creator with certain unalienable Rights Life, Liberty and the pursuit of Happiness That Governments (derive) their powers from the consent of the governed."
Later in explaining his drafting of the Declaration of Independence, Jefferson admitted that he was not saying "things which had never been said before," but was making a "common sense'' statement in "plain and firm'' words with which mankind would agree. He said that he intended to say what Americans had in mind in the tone and spirit of the occasion of the declaring their independence from British rule. In his adoption of Mason's ideas and words in the opening part of his document celebrated today, Jefferson was telling the world what Americans thought they could be.
Then during the period of 11 years following the adoption of the Declaration of Independence, the colonists fought the Revolutionary War, created 13 independent states with their own constitutions and ruling bodies, and lived under a loose union of states under the Article of Confederation. In 1787 the leaders of the states met in a convention to debate, draft and propose an overriding form of federal government to unite the states. This government was to be constituted as expressed in the formal document called the Constitution. Some of Mason's Virginia Declaration of Rights were adopted as key parts of this constitutional frame of government such as: "the legislative and executive power of the state should be separate . . . from the judiciary,'' and "the military shall be governed by the civil power."
As one of Virginia's delegates to the constitutional convention he opposed the adoption of the Constitution because it did not contain a bill of rights and it centralized too much power. This opposition, according to some historians, caused him to lose the friendship of Washington. He was one of the three convention delegates who refused to sign the Constitution and he campaigned against its adoption by the states.
Even though the Constitution was adopted as originally written, Mason prevailed in the end. Many of his ideas and words in the Virginia Declaration of Rights became part of the Bill of Rights. These were all adopted as key parts of the first 10 amendments to the Constitution in 1791.
What Americans are celebrating today is what the Declaration of Independence said we can be as a nation. It was the start.
Robert "Frank'' Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor
"Follow FDR's example"
The Berkshire Eagle, Op-Ed, By Frank Jakubowicz, September 8, 2011
For the benefit of the nation, the Democratic Party, and his administration, President Obama would be well advised to respond to the ongoing political campaign against him by finally beginning to frame his re-election bid with his major speech tonight with the words used by FDR to frame his first election bid 75 years ago.
In the bad economic times of 1936, the voters had to decide whether they wanted Roosevelt to continue his New Deal policy of direct government action to help Americans. It was a policy of a safety net for the elderly (Social Security), a labor protection net (collective bargaining rights, safe work places and unemployment insurance) a consumer protection net (regulation of business), a national economic stimulus net (regulation of business) and a government economic stimulus net (public works projects).
In today's bad economic times, voters will soon have to decide whether they want to reelect Obama to continue these Democratic policies with additions like Medicare or dismantle them by electing a Republican who on ideology does not believe the government should be involved with these matters. Republican Texas Governor Rick Perry, the current front runner for the GOP presidential nomination, vows to make government "inconsequential" in the lives of Americans. He not only questions the constitutionality of Social Security, but calls it a "Ponzi scheme," in effect a fraud.
GOP Budget Committee Chairman Rep. Paul Ryan proposes to significantly change Medicare as exemplified by his "Path to Prosperity" budget resolution which was passed by his Republican colleagues in the House. But Perry, Ryan and other Republican Party leaders recognize the popularity of Social Security and Medicare so they say trust us, we are just trying to preserve and make these programs better.
This is what Roosevelt said about trusting Republicans and other opponents to his New Deal policy. "[My opponents] say -- of course we believe these things. We believe in Social Security. We believe in work for the unemployed. We believe in saving homes. Cross our hearts and hope to die, we believe in all these things. But we do not like the way the present administration is doing them. Just turn them over to us. We will do all of them. We will do more of them. We will do them better. And most important of all, the doing of them will not cost anybody anything."
With speeches like this, Roosevelt was able to frame the 1936 election as a cultural battle pitting the Democratic Party and his administration's populist policies against Republicans, the "business and financial monopoly," speculators, "reckless" bankers, and those causing "class antagonism" (and) sectionalism," all of whom "consider the government as a mere appendage to their own affairs."
This past weekend, Sarah Palin reiterated Perry's call for small and weak government to the applause and cheers at a tea party rally with the worn-out conservative right wing battle cry, that "the government that governs least, is the government that governs best." This theme has become the political mantra of the Republican leadership in Congress. It is at the bottom of all the political rhetoric and political action by Republican Party members and their supporters in and out of government.
And the logic of this theme -- incidentally Palin in her TV speech said that tea partiers had "logic'' on their side -- is that a small, inconsequential government means less regulation, and less taxes and spending. In the ideological belief of Republicans and their supporters, that will create jobs and lead to the reduction of the national debt. What is not mentioned in this reasoning is the fact that this has not worked in the past.
A united front of business leaders, conservatives and right wing extremists is cynically bent on electing a Republican as president who will dismantle the nation's social safety net. Obama should throw down the gauntlet as Roosevelt did. Not since FDR have these forces been so united against a president with their unanimous hate and lack of cooperation. He should welcome this political fight and take it on, rather than trying to appease these forces.
Robert "Frank" Jakubowicz is a Pittsfield lawyer and regular contributor to the Eagle.
"Far too few reps. for so many citizens"
By Frank Jakubowicz, The Berkshire Eagle, Op-Ed, January 26, 2012
The residents of Pittsfield, Berkshire County and the surrounding rural hill towns now face the possibility of being represented in Congress by Rep. Richard Neal (D-Springfield), who is not from this area and has represented a different constituency for more than 20 years, including several urban communities. The frustrating thing about this situation is that it was caused by state legislators using a simple math calculation of extending the prior congressional district eastward until it included 727,514 people to equal eight similarly populated state districts. All of this was done so as to fit the state’s number of representatives into a congressionally limited House of Representatives of 435 seats.
This is representative government by math and not by a thoughtful consideration of creating an ideal number of representatives to best represent the views of not only Western Massachusetts residents, but those in all the other congressional districts in America. Representatives in our scheme of government, unlike senators and the president, were intended by the Founders to be close to their constituents by representing a limited number of them so as to closely mirror their views in the legislative process. To ensure that these constituent views were kept current, the Founders fixed representative terms to two years to allow constituents to update their views through this frequent electoral process.
Today, according to public opinion polls, there is an obvious and glaring disconnect between the public and its representatives in Congress. These polls show that as much as 84 percent of Americans disapprove of the way Congress is doing its job. This rate of disapproval is the highest in nearly 40 years of polling. Congress, in particular the House of Representatives, is not representing the views of its constituents in doing the job of governing, instead playing a political game of partisan politics. One big reason for this is that the proportion of the number of representatives to their constituents is too small and these elected officials are not close enough to their constituents.
As a Pittsfield or Berkshire County resident, consider whether you think that as one out of three quarters of a million people in the congressional district that your views and interests are best represented by just one representative.
The ideal number of representatives has been controversial since the founding of the country. James Madison noted in The Federalist Papers Number 55 that of all the provisions in the Constitution this question deserved the most attention because of the "force of argument with which it has been assailed." He considered this as difficult a political problem as there is, lacking a "precise solution" because he could not predict what change in this number would occur over time and a growing population.
But he thought that at least for the time of the founding of the country, Americans would be adequately and safely represented by the Founders’ constitutional plan of 65 representatives at the outset with a minimum of 30,000 constituents each. And this number was to be added to, from time to time, by Congress after eventual successive 10 year census periods. Madison did not think it would be "extravagant" to imagine that in 50 years (1838) the number of representatives could be 400.
Except for one small exception, the number or representatives set by Congress has remained at 435 since 1913 despite the more than doubling of the American population since that time. The average ratio of constituents to one representative at that time was about 212,000 people. Today in addition to the constituencies in this state of about 727,514 to 1 representative, other states have higher ratios. Montana’s entire population of 998,199 has 1 representative. If Madison was alive today he would be shocked.
These figures make America one of the least democratic in terms of such representation by comparison to other major countries with representative forms of government. Great Britain has a Parliament with 650 members. Germany’s national Parliament has 620 members. The French Parliament has 577. And when one does the math of dividing the populations of those countries by their Representatives, the average ratio is about 150,000 to 200,000 constituents to 1 representative.
An increase in the number of representatives is long overdue. Two college professors, Michael Merrill and Sean Wilentz, in a 1990s article in The New Republic, argued that the number of representatives should be doubled to 870 seats which they calculated then would make it a ratio of 300,000 to 1 representative. They concluded their article with a quote from Andrew Jackson: "That the best cure for democracy’s ills is more democracy." I agree. A lower ration of constituents to a representative would certainly bring representatives closer to the people, make them more accountable, make them more representative of their constituents in casting votes, and make it easier for incumbents to be challenged in elections.
Congress should take this matter up now to catch up with the grossly disproportional representation we now have. I strongly recommend that the candidates in this area’s congressional race make this part of their campaign.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"Class warfare not new to wealthy"
By Frank Jakubowicz, Special to The Berkshire Eagle, February 9, 2013
The 16th Amendment to the Constitution authorizing the income tax is 100 years old this month. But despite this passage of time, the tax remains as controversial as ever. The political battle over it from the start has been a fight by a succession of small groups of very wealthy Americans who contend that this tax is just a populist government policy to "soak the rich" and to redistribute their wealth through this tax to pay for programs benefiting the mass of Americans.
After losing their bare-knuckled class warfare battle to prevent the income tax and following the blowback by a majority of Americans who adopted this amendment, these wealthy few worked hard to revise the story of this warfare in an effort to minimize the tax. They accuse the mass of Americans and Democratic Party politicians of engaging in class warfare when proposals are made for tax increases or to reform the federal tax law by, among other things, eliminating tax breaks for the wealthy. They claim that increasing the tax burden on them is a scheme to close the gap between the haves and the have-nots. They also claim that Democratic presidents like FDR and Obama pushed for tax increases to fund socialistic policies. But the history of this warfare contravenes these claims.
The precursor to this amendment was a contrived legal case challenging the constitutionality of a 1894 law passed by Congress to impose a tax of 2 percent on income above $4,000. Joseph H. Choate, a prominent attorney, led a group of lawyers in the challenge to this federal law. He reportedly argued that the law was "communistic in its purpose," and based on "socialistic" and "populistic" principles. Senator David Hall (R.-NY) said the tax was "the work of anarchists, communist, and socialist." A prominent Wall Street lawyer called it "class legislation of the most pronounced and vicious type." In his closing argument, Choate warned the Supreme Court that if it did not step in and strike the law down as unconstitutional, then "this communistic march goes on." These claims are still being made today.
Prior to this case, Congress had passed an 1862 law imposing a tax for a limited time on incomes over $600. This was done because the North needed more revenue to fight the Civil War. This law was not considered unconstitutional. This tax was abolished in 1872 when Congress imposed a higher excise tax on certain products. Congress then reestablished the federal income tax in 1894.
When the constitutionality of this law was challenged, there was general public expectation that it would be upheld. The case had an unusual history. After several Supreme Court hearings, the case ended with a tied court 4 to 4. The absent justice, who was reportedly terminally ill, made the effort to travel to Washington for a rehearing of the case. He thought that the law was constitutional and it appeared that his vote would serve to uphold the law. But one of the other justices changed his vote and the law was declared unconstitutional by a split decision of 5 to 4.
One of the justices voting with the majority, wrote in a concurring opinion that this assault by the income tax, was a step toward future political contests becoming "a war of the poor against the rich." The dissenting justices in this case were outraged. One wrote that this was a "surrender of the taxing power to the moneyed class." Another in a later letter to his sons, wrote that if this case stood as good law then its effect will be "to make the freemen of America the slaves of the accumulated wealth.
The public was equally incensed by this case and demanded a constitutional amendment to overrule the court. Senator William Borah of Idaho reportedly predicted that if this proposed amendment failed then "the greatest war in history will be fought around the wreck of the Supreme Court." The adoption of the amendment removed any question of the constitutionality of congressional authority to levy an income tax. This shifted the class warfare battlefield from the courts to Congress.
The wealthy few and their lobbyists have been battling in Congress ever since to protect their interests under the federal tax code. The result so far, as one professor of economics commented, has been to not only make the very wealthy just somewhat "damp," rather than soaked, but to create a federal tax law that is a "mess" crying out for reform. Meanwhile their surrogates in Congress and in the private sector peddle misleading stories for even further tax cuts. This wealthy group is portrayed as job creators in need of special tax considerations. Also the political slogan that "we don’t have a tax problem, we have a spending problem" is being used to make their case against any tax hikes.
But, business enterprises are run for profit and not jobs -- which they cut first in favor of profits. Also there is consensus among a majority of credible economists that to address the deficit and to adequately fund government requires additional adequate revenue, wise spending cuts, and a major reform of the tax code to make it fair and equitable. Class warfare in American has been conducted by the very wealthy for their benefit and not by those referred to today as the 99.9 percent.
"No case for election law changes"
By Robert F. Jakubowicz, Special to The Berkshire Eagle, March 7, 2013
"Republicans want local control over elections so they can come up with a new set of registration laws and control the vote," exclaimed an incredulous Ed Schultz of MSNBC last week while discussing the Shelby County, Alabama case that challenges the constitutionality of the Voting Rights Act. Schultz, and many Democrats who share this view, will be surprised to learn that the founding fathers actually left the method of holding elections mainly to the states with little congressional oversight. And therein lies the constitutional problem of federal regulation of elections.
The Supreme Court in a 1966 decision upheld the Voting Rights Act essentially as a one-of-a-kind federal law to remedy the then persistent problem of racial discrimination in voting in a small number of states that required an immediate remedy. Under this federal act, state election laws are made subject to preclearance by the Attorney General without any prior court adjudication regarding voting discrimination.
Traditionally such prior court action was expected to first determine if such discrimination existed before any federal action was taken to deal with it.
Under the Constitution, as drafted in 1787; the presidential electors are chosen as directed by state legislatures which initially also chose senators until a 1913 constitutional Amendment, and representatives and senators are elected at "times, places, and manner of holding elections" as "prescribed" by state legislatures subject to limited federal oversight. Under this electoral system, states have passed a hodgepodge of election laws.
Americans have since have applied patches to this system by way of constitutional changes to remedy some of the electoral abuses that resulted under some of the state laws. But none of these constitutional amendments put the federal government in charge of elections. Rather, they were few and limited prohibitions against states laws and practices that denied the right to vote based on "race, color, or previous servitude," sex," a "failure to pay any poll tax," or "age."
These changes to the election process only added more patches to the patchwork system of state election laws. One of these changes, a 1870 Amendment banning state laws denying the right to vote based on race and color, led to the current constitutional challenge of the Voting Rights Act before the Supreme Court.
After the Civil War, most of the Southern states passed laws designed to suppress voting by the newly freed slaves by allowing unfair literacy tests and tax payments as requirements for voting. This racial discrimination continued for almost a century until the mid-1960s because of limited and ineffective enforcement by the federal government. Finally, the public outcry by the civil rights movement and the bloody reaction to it by Southern states, including the murder of three civil rights workers in Mississippi and the violent attack by police on the peaceful civil rights marchers in Selma, Alabama, caused President Lyndon Johnson to take action.
LBJ appeared before a joint session of Congress in 1965 and called for a strong federal voting rights law to remedy the problem of voting discrimination. The result was the Voting Rights Act of 1965. This was a unique federal law. It created a statistical formula based on then voting and census records to identify the states and political subdivisions that were engaging in such voting rights discrimination based on race. The initial group of states included Alabama, Alaska, Louisiana, Mississippi, South Carolina, and Virginia as well as counties in Arizona, Hawaii, Idaho and North Caroline. These states and counties then automatically became subject for five years for preclearance of their election laws by the Attorney General or a federal court in the District of Columbia.
This preclearance of state voting laws has been extended four times by Congress, in 1970 for another five years (based on 1968 voting records), in 1975 for seven years (based on 1972 voting records and adding the state of Texas, and the entire state of Arizona and parts of six other states), in 1982 for 25 years (with a new enforcement formula), and in 2006 for an additional 25 years under President George W. Bush's administration and a Senate vote of 98 to 0 and a House vote of 390 to 33.
In the 1980s, a young lawyer in President Reagan's Justice Department, John Roberts, the current chief justice of the Supreme Court, reportedly had the job of curtailing the effectiveness of the Voting Rights Act of 1965. Later in a 2009 Supreme Court case, Roberts, as chief justice, wrote the majority opinion resolving that case by avoiding the constitutional validity of the law. But, he stated in that opinion that the "exceptional conditions" in Southern states over voting in the 1960s that justified the "extraordinary legislation" of the Voting Rights Act, "unfamiliar to the federal system, no longer existed because of the success of that Act." This change, he wrote, in effect presents a difficult constitutional question whether there still is adequate justification for such preemptive clearance of state elections laws by the attorney general.
Judging by Pennsylvania's Republican House Majority Leader Mike Turzai's comment last year on the passage of a state law calling for "Voter ID, which is gonna' allow Governor Romney to win the state," I strongly disagree with Roberts prejudgment of the Shelby County case that there is a lack of justification for the preclearance of state election laws today.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
"Will Pittsfield, county rise to the challenge?"
By Robert F. Jakubowicz, Special to The Berkshire Eagle, 4/25/2014
Twenty-five years ago, a retiring member of the Berkshire Regional Planning Commission (BRPC) challenged Pittsfield and Berkshire County to begin planning to become a smaller, but still viable metro community and county in what was to become an economically diminished region. That was the time of the GE plant shutdown which placed the city and the county at risk of slipping into recession. What happened to that challenge?
Pittsfield initially and rather swiftly rose to that challenge. There was a large public interest and discussion of dealing with this economic challenge that resulted in action. Local and state officials rather quickly found and worked with several developers on a plan to build a mall in the city’s downtown. Unfortunately, the project was delayed because of a search to find a fourth large anchor department store. This delay allowed a group of shortsighted local residents, who feared the mall would ruin the city’s small-town feel, and downtown Pittsfield merchants, who feared competition from the mall, to elect a new mayor who killed this project. The mall was later built in Lanesborough.
Subsequently a former GE executive offered to personally fund a plan to build a minor league baseball park in the city. This project was killed by another group of ill-advised local people. This time they used a non-binding referendum on this project to vote it down.
Opponents of the ballpark claimed the vote prevented what they claimed would have been the creation of a city authority with power to take private property all over the city. However, this referendum vote in my opinion was mostly about a majority of city residents venting their displeasure with the then sitting mayor who supported the new ballpark.
If these two projects had been successful, they would have formed a three-cornered triangle in the center of the city with the performing arts theater project, which later did succeed, to create a much needed and rejuvenated area of business activity to improve the economic prospects of Pittsfield. But in the words of Robert Burns, "best-laid plans ... oft go astray," as they did here, and the search goes on for a plan B.
Meanwhile, according to data from Adversity Index data compiled by Moody’s Analytics, Pittsfield in 2012, while slimly hanging on to positive territory, was one of 76 metro areas in this state that is still at risk of slipping into recession. This now long-standing, uncertain economic situation causing a continuous decline in population and a remaining aging population is taking its toll on local residents. One of them echoed this growing concern by area residents when she, while at a public hearing on a BRPC report, asked whether there was any hope for the residents of the city and region?
I later contacted Nathanial Karns, the executive director of BRPC and asked him the same question. He responded by noting that while Pittsfield remains challenged economically, it is not unique. According to Karns, there are many similar communities not only in America, but in many prosperous countries like Germany. He thought it was "very important" to keep this problem in perspective because in his view growing hopelessness can "easily become an accelerating self-fulfilling prophesy."
One of his main components of a plan B is to work on rebuilding the area’s population by getting young people, preferably with families, to stay, return or relocate and to welcome immigrants. This is not an easy task and has plagued the area for a long time. He noted that new approaches are needed for such programs to offer incentives for educated workers to remain in and to come to Pittsfield and the Berkshires.
Karns’ other components of a plan B, for which he says we have "good pieces, but not a complete system," include a strong entrepreneurial system, making a broader use of the city’s downtown, and a new 21st century broadband system here. He was also greatly concerned about the decline in the school population because of its effect in cutting out programs that would otherwise train students to meet the needs of employers to hire replacements for retiring employees.
After 25 years of economic uncertainty, population and job loss in Pittsfield and Berkshire County, there is an increasing weariness among the people here of an inevitability that Pittsfield and the county will just keeping slipping into a deeper economic hole toward an uncertain future. A weariness that left unchecked could very well develop into Karns’ fear of a self-fulfilling prophesy of economic doom.
My point is that it is time to get out of this rut of economic despair and to begin anew the type of public interest, discussion and call to action that took place to initially meet the economic challenge posed by the GE’s action 25 years ago. Karns, in his response to me, also made that point by noting this should be "an all hands on deck situation." A time for everyone, from writers of letters to the editor to city councilors to the mayor, to the Statehouse delegation, and the governor who lives in the region to become involved with ideas, proposals, and actions to meet the long-standing challenge hanging over the region’s head -- for a quarter of a century.
Robert "Frank" Jakubowicz is a regular contributor to the Eagle.
"It's not a federal case"
By Robert Jakubowicz, Special to The Berkshire Eagle, 5/19/2014
In a current federal district court criminal case in Boston, Judge William Young, appointed under a federal patronage system, is presiding over a trial in which the office of U. S. Attorney Carmen Ortiz, who also was appointed under the federal patronage system, is prosecuting former state probation commissioner John J. O’Brien, who was appointed under a state patronage system, for engaging in, of all things, political patronage.
And to squeeze O’Brien’s activity into a federal criminal law, Ortiz’s office twisted RICO (the Racketeer Influenced and Corrupt Organization Act) into a legal pretzel.
Over the years, the political practice of patronage and even the word "patronage" itself have been subject to public scorn. But this practice continues despite such reforms as civil service, government employee ethical conduct, criminal bribery laws and public outrage. One thing that has changed is the avoiding of the use of the word to describe this political system of hiring government officials.
For example, federal judges and U.S. attorneys are selected under what is now referred to as a "custom" of "senatorial courtesy," in a 2013 Congressional Research Service Report -- "Role of the Home State Senators in the Selection of Federal Court Judges."
According to this report, senators from a president’s party have long played a primary role in the selection of candidates for federal judgeships and U.S. Attorneys.
Candidates for these positions must get so-called "blue slips" (the color of the stationary) approval from their home state senators who are members of the president’s party before their candidacies can move forward. This report notes that the current chair of the Senate Judiciary Committee Patrick Leahy (D-Vt.) will not report the approval of any such candidates from his committee unless he has the "blue slips" from both home state senators.
The report then notes the obvious, namely, the potential for abuse that is present under this "senatorial courtesy" system. It still is the same old political patronage under a different name. And senators, over the years, have used this system for their political benefit by either getting their friends and supporters nominated and appointed for these positions, or by withholding their approval of home state nominees until they receive something they want such as a political pet project in their state.
Judge Young, who was appointed under this patronage-cum "senatorial courtesy" system, reportedly instructed the jury at the outset of the trial that "political patronage is not a crime." He told them that the prosecutor must show something more than patronage. O’Brien and two of his former deputies, according to the prosecutor, hired employees, many of whom were not qualified based on merit in place of applicants who were more qualified. This is nothing new in state hiring practices based on what I witnessed to varying degrees as a past state legislator The sponsorship of a state elected politicians was one to the necessary requirements for consideration for a state position. Young also told the jury that it was not a crime to hire employees based on political sponsorship and disobeying department hiring rules to select employees based on merit. This is what O’Brien has alleged to have done.
The case against O’Brien then presents the question of what was so different about his patronage practices that made it a federal crime? I have to give the U.S. attorney’s office credit for its imagination in formulating the criminal charges, but I question the legal basis for those charges.
To add the element of something more than merely patronage resulting in people being hired without merit in violation of department hiring rules, as noted by Judge Young, and to meet the requirements of RICO, the prosecutors in my opinion have gone too far in defining and stretching that federal criminal law. They assert that the running of the state probation office is an enterprise affecting interstate commerce to establish federal jurisdiction. They allege that there was a pattern of racketeering activity in that enterprise because O’Brien wanted to increase and maintain power over his department by getting increases to his budget by currying favor with legislators by hiring their sponsored job applicants, and that in this process some false records were kept of interviews and scoring sheets for job applicants.
Additionally, the prosecutors allege, as I understand it, that by using the mail in such a "rigged" system, to inform successful and rejected job applicants, O’Brien’s engaged in racketeering by mail fraud which allegedly satisfies the need under this federal criminal law to show multiple criminal acts.
If the objective is to criminalize hiring practices such as those used by O’Brien, then it should be done by enacting explicit criminal laws and not by the a prosecutor who goes shopping through federal laws to find one she thinks she can stretch to include political patronage. In my opinion, her stretch in this case is beyond the intended purpose of RICO. What should be done consistent with our governing principle of the rule of law and not men and women, is to enact a law making it a criminal act for any state elected official to in any way sponsor an applicant for a state job, and for a state hiring officials to violate administrative hiring procedure.
Robert "Frank" Jakubowicz, a lawyer and former state representative, is a regular Eagle contributor.
“Slogans not enough for mayoral hopefuls”
By Robert F. Jakubowicz, Op-Ed, The Berkshire Eagle, April 23, 2015
PITTSFIELD - In announcing her intent to run for mayor, Pittsfield City Clerk Linda Tyer had a slogan that may still resonate, albeit with growing pessimism, with city residents. She said she wanted to make this community a "thriving, dynamic city." But, it is a tired, old message that has been repeated by community leaders and aspiring political office holders since GE left some 30 years ago, and there has been little success in delivering the hoped for results of that message.
Ms. Tyer's entry and that of others in the mayoral race just to make it a contest is not enough at this point. Pittsfield residents want more from their mayoral candidates. They want public debate by the candidates based on actual ideas and ;plans to move the city forward.
I hope Ms. Tyer and the other mayoral candidates are not planning to simply follow the now usual political campaign strategy of running for office on slogans like the one she announced at her press conference. City residents, especially the older ones, are not interested in merely hearing promises. They want to hear specific plans with details of what the candidates actually intend to do or at least try to do. They want to be able to judge the candidates on the basis of their concrete proposals not their slogans, personalities, or as someone for whom to cast a ballot as a negative vote against the incumbent mayor.
The public announcement by Ms. Tyer had the look of a rally around her by some elected and former elected city officials and others who are disgruntled with the current mayor. Hopefully there will be much more to her campaign as well of the campaign of others than being figureheads for city residents dissatisfied with the performance of the mayor.
Obviously there is no one, so-called, silver bullet plan to return Pittsfield to its heyday when GE drove the local economy. There is no one large employer like GE to be enticed to locate here.
As I had written in a previous column, there have to be a series of plans to boost the local economy along the lines of what was tried in the wake of the GE departure. Those plans included an attempt to locate a large mall downtown, which would later have been in proximity to a new minor league baseball park, forming an area downtown with an existing museum, a large hotel and a budding theater district. All could not have missed being a big economic boost for Pittsfield and the county.
Unfortunately, a large enough segment of shortsighted residents and a handful of city political leaders were able to kill the key projects of the downtown mall and the ballpark to foil these attempts to revitalize the city.
Today, many of these Pittsfield residents and the political leaders who opposed these changes are gone. And the majority of today's city residents are now patiently and hopefully looking for community and political leaders to come forward with proposals to indeed make the city a thriving and dynamic community.
The big question for the upcoming city mayoral race is whether there are any candidates in the field that have actual plans at this point that might revitalize the city. I mean a candidate who has actually done his or her homework and has a plan to move the city forward as the basis for his or her candidacy.
MORE THAN WINNING
Too many politicians in this country on all levels do not prepare to run for office on the basis of detailed plans and objectives to benefit their constituencies that they have worked out before their campaigns. Their main goal is to simply win the election. And if they win they hope that while they are in office that either something will come along that will benefit the community, or they might think of something for the good of the community.
Candidates for political office in this country have become obsessed with winning. But winning is not the only thing, despite the infamous comment to that effect attributed to former NFL coach Vince Lombardi, who is later quoted as saying, "I wished I'd never said the thing."
The basic purpose of elections is to allow candidates with differing goals and ideas — in this case of how to move Pittsfield forward — to campaign on them. This would guarantee a real public debate on such important issues to fully inform the voters as to who has the best ideas or plans to merit their vote. This is what city voters have been patiently waiting for.
Robert "Frank" Jakubowicz is a regular Eagle contributor.
"Keep a keen eye on bat as well"
By Robert F. Jakubowicz, Op-Ed, The Berkshire Eagle, June 8, 2015
PITTSFIELD - Foul balls and pieces of broken bats flying into the stands at baseball games are not just souvenirs for the fans. They are dangerous missiles that can cause serious injury, as evidenced by the Red Sox fan at Fenway Park who suffered life threatening injuries Friday night after being struck in the head by a piece of a broken bat that flew into the stands.
Adding to her injury, the fan under the current state of the law in Massachusetts has a questionable legal right to recover damages from the Sox.
There are two state court rulings dealing with fans injured at baseball games. In both cases the court found the Red Sox were not liable for the injuries. Although these cases involved injuries from foul balls, they can be used as precedents for injuries from fragments of broken bats flying into the stands.
Shards of broken bats flying around the infield and into the stands are now becoming so common at games that they could likely be considered by a court as common and obvious risks for fans as are foul balls.
In a case 55 years ago, a Red Sox fan who attended many games sued the ball club for injuries she sustained from being hit by a foul ball. The state Supreme Judicial Court ruled against the fan because she was knowledgeable about baseball and the danger of injury from foul balls. In other words, the court decided that fans assume the risk of being hit by foul balls at baseball games because it is an inherent part of the game.
In 1978, the state legislature passed a law that abolished the assumption of risk by an injured person as a defense by the party being sued in all personal injury cases.
Then, 17 years ago, a fan was injured by a foul ball at Fenway Park. She arrived late and was in her seat, 141 feet from home plate not more than 10 minutes when she was hit by a foul ball. She sued the Red Sox for her injuries. According to an engineering expert she hired, she had no more than 1.07 seconds to get out of the way from the time the batter hit the line drive foul.
The lower court found in favor of the Red Sox and the state's Appeals Court upheld the ruling. The court did so despite two differences between her case and the earlier case.
This injured spectator was not knowledgeable about baseball and her case was based on the Red Sox being negligent for failing to adequately warn her of this danger. The ball club could not raise the defense that fans assumed the risk of being injured because that defense had been abolished by the legislature.
Nevertheless, the court ruled that the fan failed to prove negligence by the Red Sox because as a matter of law in this state, a spectator of "ordinary intelligence," even with limited knowledge of baseball, would understand the "obvious" danger of foul balls being hit into the stands. Thus the Red Sox had no duty to warn her of this danger.
The current fan injury case has one more difference with the prior two cases that I think is significant. She was hit by pieces of a broken bat flying into the stands. Unlike a baseball, something can be done to bats to minimize their breaking.
There is an ongoing controversy in baseball about the increasing popularity of maple wood bats such as the one used by Oakland's Brett Lawrie that shattered and struck the Fenway spectator Friday. These bats, according to critics, break much more frequently than the traditional ash wood bats.
There have been calls in recent years to do something about these bats, but nothing has been done. According to one critic, nothing will be until a player or a fan is killed by a shard from a maple bat. This is what almost happened last Friday at Fenway Park. Fortunately, according to a recent medical report, the fan is on her way to recovery.
Her case has the potential to change the law regarding injuries to fans at baseball games, at least those caused by broken bats. If the Red Sox deny legal responsibility for her injuries based on the case law in this state, she is likely to sue. I think the court will be susceptible to finding the manufacturers of maple wood bats liable for fan injuries based on a design defect in those bats. Also ball clubs could be found negligent for allowing players to shave and taper the bat handles, making them more likely to break. Batters think this gives them an edge.
In the meantime, fans should keep their eyes not only on the ball but on the bat.
Robert "Frank" Jakubowicz is a regular Eagle contributor.
- Jonathan Melle
- Amherst, NH, United States
- I am a citizen defending the people against corrupt Pols who only serve their Corporate Elite masters, not the people! / My 2 political enemies are Andrea F. Nuciforo, Jr., nicknamed "Luciforo" and former Berkshire County Sheriff Carmen C. Massimiano, Jr. / I have also pasted many of my political essays on "The Berkshire Blog": berkshireeagle.blogspot.com / I AM THE ANTI-FRANK GUINTA! / Please contact me at firstname.lastname@example.org
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