A Postscript for Justice Souter: It is Important to Clarify the Difference Between Community Service and Civic Engagement

My most recent post discussed a talk given by Justice Souter on the subject of the importance of civics education, and the critical role it plays in preserving an independent judiciary. The focus of that piece was what Justice Souter described as the source of his understanding of civics, namely his experience observing democracy in action, in the form of annual town meetings in small town New Hampshire. That piece, in effect, argues that Justice Souter’s description of his experience shows that true civics education comes best from direct observation of or actual interaction with the democratic process itself, rather than mere exposure to philosophic notions or ideals during the four corners of the school house. There is another point worthy of attention that I did not raise in my piece of December 1, 2009. Although I pointed out that Justice Souter’s piece related to a “democratic experience,” I did not adequately point out that we should not confuse the description of his experience with that of someone engaging in “community service” and volunteerism. Community service is voluntary behavior or action that is designed to benefit a community or its institutions. Although a democracy is unlikely to function well without a population motivated to engage in community service, it is important not to confuse community service with the democratic experience. Community service can exist in any society, not just in a democracy or a democratic republic. Community service requires only that an individual or several individuals care about the needs the community itself or other members. For instance, one can provide food to the homeless without worrying about the causes of homelessness or whether there are larger social problems causing homelessness. Alternatively, one can volunteer to clean up a park without wondering if there are underlying societal problems causing the park require clean up. The democratic experience, however, requires its participants to evaluate the communal needs and the role of local, state, and national government in addressing those needs. Even the most libertarian among us see a role for government in assuring certain levels of safety from violence and the availability of roads for safe travel. Thus, the democratic experience is one where a citizen mentally goes beyond individual service and begins engaging in problem solving on a societal or global level. The democratic experience includes the thought process of devising societal solutions and the willingness to take communal steps towards resolving such problems. This may involve attending meetings on public issues, working with others to resolve the problem, raising money for a community or lobbying association, or even volunteering to elect a particular candidate. One can only have a true democratic experience in a society that allows for such. A society which tells its young that they have no power to alter social institutions is not truly democratic, regardless of whether the law technically provides for democracy. However, a society where citizens feel a sense of ownership towards their government, and thus empowered to organize for change to government’s institutions is truly democratic. By “change to government’s institutions,” I do not only mean the type of radical change sought by Saul Alinsky-style activists. I am also referring to budgetary changes and communal priority changes that would be decided upon in the town meetings described by Justice Souter. Thus, the democratic experience includes the thought process of devising societal solutions and the willingness to take communal steps towards resolving such problems. This experience may involve attending meetings on public issues, working with others to resolve the problem, raising money for a community or lobbying association, or even volunteering to elect a particular candidate. In other words, it is this democratic experience, rather than community service, which is the essential function of those citizens who are democratically engaged.

Stories of Democratic Experience

Part of my reason for focusing on Justice Souter's talk has been a deep interest in the notion that experiences with democracy are worth discussing openly, because they shape how we see the opportunities to be engaged democratically.

From a psychological standpoint, open honest talk about one's influences help explain one's philosophical approach to problems. For instance, my personal perspective in how to address social and economic problems stems a great deal from my experiences as a community organizer in 1998 and 1999, including when in 1999 my work focused on community organizing in low-income neighborhoods in Baltimore city. They also likely stem from my experiences in at other times of my life as well.

If one does an oral history of one's political perspective, one is likely to focus on those instances in which one can to a specific realization concerning economic, community, or international affairs. However, the democratic experience is not always about big realizations. When I think about those instances where I might be said to have accomplished something politically useful, such as when I helped stop a private prison from being built in Washington DC and when I helped push for a Loan Repayment Assistence Program in my law school, I did not unilaterally pick a community problem, create infrastructure to address the problem, and manipulate that infrastructure. Instead, I joined an existing campaign, saw some organizational and leadership need I could address, and found ways to succeed by taking advantage of others' talents. In neither campaign have I been recognized for my contribution, and its dubious if my contribution had any unique value.

From the standpoint of democratic engagement, it is not interesting whether or not my contributions to the projects were important or influential in ultimate success. Instead, what is important is what drove me to get involved, and what drove other community members to take time to address less-immediate-impersonal community issues.

One my experiences is life was to attend the 2008 Democrtic Party convention. For a few days, I kept an online journal where I commented on my experience. I reproduce these mini-essays here, as examples of how one might go about documenting their democratic experience. I fully recognize that these essays don't illustrate the exciting experience of being involved in pushing a governing body to take action, preventing certain action, or being involved in the inner circle of a political campaign. However, these essays illustrate one citizen's experience being part of history and excitement in that process, an experience no less worthy of documentation.

Wednesday, August 27, 2008
A Walk Around the Convention
Before I direct your attention to my experiences yesterday, I should notify you that I think Hillary Clinton hit the notes she needed to hit. The bottom line is that if we Democrats are going to advance this country into the type of country we want, namely one that maximizes personal freedoms, engages in a noble and reasonable foreign policy, and consists of a government with economic and educational opportunity for all citizens, we need all of Clinton's supporters on board. Thus, it is my hopes that all internal divisions were laid to rest by Clinton's speech.

Now for some geography. As one comes to the Pepsi center, one quickly realizes how much of the surrounding area is blocked off, and thus no vehicle traffic is permitted. Between the no-traffic area and the secured area are a few protesters, but more sellers of shirts, candy, and buttons. On occasion, one hears: "tickets tickets, I am looking for tickets."

How does security determine who to let in: one must wear their credentials badge on a cord around their neck. One shows their credentials at security walking into the secured area surrounding the convention center, walking into the convention center itself, walking into the convention hall itself, and even going into the "Sky Lounge," namely the lounge set aside for guests of the Finance Committee. Credentials are worn by almost all attendees, including members of the European Parliment, lobbyists, activists, members of the press, DNC staff, and every other attendee to that convention.

The Hall itself has 3 levels. The first level is for the delegates themselves. On the periphery of the delegate entrance are numerous vendors, many of which are the same vendors one would see if one came for a ball game. In addition, many press have tables in this area. Thus, this area is crowded with delegates, powers-that-be walking to their seats, the press, and more importantly, many looking around to find stars. On one occasion, an area surrounding an entrance way was blocked off because security heard that Senator Biden was walking in the direction of that entrance. For those of us wanting to get a glimpse of the Senator, we were out of luck, as he did not show up where we were standing. From my vague un-scientific count, however, there were probably30 people with cameras out ready to take a picture. I wonder how many people now have pictures entitled "anticipating Senator Biden."

The second level is the club level. I am not certain who gets in the club level, as I did not even try. The third level is the "Hoi polloi" level, otherwise the nosebleed section. As you can imagine, that was the section I was in.

As one may imagine, there are far fewer seats than those interested in getting in the hall. Yeseterday, I came early to see Rep. Kucinich. He gave a great speech, and got some great crowd reaction. However, he spoke around the 5:00 hour. No one has a problem finding a seat then. Actually, I had a great seat for Kucinich's speech. However, my interest in eating dinner overcame my interest in preserving my great seat. Thus, when I tried to go back in around 7:15 or so, I ended up 3 rows from the top, which is a very steep view. Lessons learned: if you get a good seat, keep it!

As security was strictly enforcing how many they would let in the hall at once, I realized I was not going to get back in for Clinton's speech, so I headed back to the sky lounge and had an opportunity to sit with some prestigious internationals in which we engaged in an intriguing dialogue about the role of government in managing the market. As I am not the most articulate in economic discussions, and have strong Bush Jr.-like tendencies when economics are the subject of conversation, I was very proud to be able to have an intelligent economic discussion with a member of their home country's parliament. I then learned that this very kind gentleman was in line to become Finance Minister. Upon that revelation, I made clear that I anticipated my knowledge of the economy was minimal compared to his.

As you can see, this blog appears to be taking the diary form rather than the essay form I had hoped. As you can imagine, there is a lot to take in and no so much time for blogging. In any case, I hope you all are enjoying my random thoughts, and will let me know if there are any subjects about which you wish to read that I have failed to discuss.
Posted by Adam W. Marker at 6:08 AM 0 comments
Tuesday, August 26, 2008
Some props to Howard Dean--and other day 1 happening
Today was the first day of the Convention. Thus the opportunity to hear thousands of cheering democrats in the Pepsi Center in downtown Denver. It was moving to see the excitement of Ted Kennedy fans while he spoke, and while they presented a film about his life. When Michelle Obama spoke, I was not in the Pepsi Center but in "Blue Sky Grill," a neighboring facility for special guests of the DNC Finance Division. Even there, you could tell the difference between Obama and other speakers. When Obama spoke, everyone listened. When others spoke, like various politicians, some listened and some sat around and drank and shmoozed.

I want to give props to Howard Dean, who spoke at an "after hours party" sponsored by the Finance Division, called "Party with your party." On the bus ride over, it became clear that I was going to a party with some major funders, some of whom were personally wealthy and some of whom had talent for engaging other's generosity. Nevertheless, Howard Dean's remarks at this event was telling about how he sees the Democratic Party. He said something to the effect of, "as you know, we want everyone to be involved in our party. However, not everyone has the ability to give as much, as so we have events like this to reward those of you who give more." Although I am not certain of the exact words, the subtext is very clear: this is a party for all democrats, not just the wealthy few. It is worth honoring those who are fortunate enough to give more, but that does not take away from those who give less, nor does it suggest that those who are able to give more are necessarily more committed. Rather, the ideal would be for all to contribute the same, and it is wise for those of means to donate the monies that those without means cannot.

This is an extreemly powerful statement, and made even more powerful by the location in which Dean gave it.

Another aspect of that party deserves comment, namely, the musical guest: the GooGoo Dolls. They rocked! Unfortunately, Americans are not used to dancing while dressed in suits when they are not at weddings. For me, I was ready for some serious dancing, but that wasn't in the cards for this party.

Earlier in the day I went to a meeting of the National Jewish Democratic Council. At the same time of the NJDC meeting, several other ethnic based groups met as well. After the meetings, I had the opportunity to discuss our respective meetings with someone who is a member of the Native American caucus. Although I did not learn what occurred in that caucus meeting, I learned how frustrated many Native Americans are that the United States has generally failed to live up to the treaties it entered into with the tribes. She further expressed concern that the courts refuse to require compliance. Although I have very little knowledge as to the current status of our compliance with our obligations to Native American tribes, I certainly hope that if she is accurate, attention is quickly directed towards that issue quickly! I will have to look into it.

The NJDC meeting was not a meeting directed towards activism, which is what I had hoped. It was analysis of Jewish voting patterns expected for this election. Knowing that the Obama team had created a special committee directed towards outreach to the Jewish community, I asked one of the NJDC professionals why that outreach was not addressed. The response was that the NJDC was a 501(c)(4), and therefore prohibited from endorsing and identifying specific candidates in their work. Thus, the meeting was relatively academic in nature.

In conclusion, the streets of Denver reflect the democratic engagement I referenced in yesterday's discourse. Sadly, most noticeable were the right wing fanatics, including several posting signs specifically directed towards homosexuality, saying things as direct as "homosexuality is a sin" and something about going to hell. One couple standing near me went up to one of the protesters and said "not everyone believes in hell. For instance, Jews don't believe in hell. Apparently the response was: then they are going to hell. Never a dull moment.

More on Denver itself later in the week. Also, more on the hotel in which I am staying, which is doing a great job trying to become more "green."

I also had an extensive conversation with a Clinton supporter who alleged that the Obama folks committed electoral violations in Iowa. She further alleged that the leaders of the DNC that be have been trying to rescue control from the Clintons are thus got Obama with those goals in mind. Although I don't have enough information to comment further, it will be very interesting to see what happens over the next couple days.
Posted by Adam W. Marker at 12:06 AM 0 comments
Sunday, August 24, 2008
Traveling to Democracy
It's midnight in Denver, many hours since I left the District of Columbia. On the surface, all I did today was travel. However, in my mind, I did something more, namely prepare to participate in and observe the democratic experience.

On the plane to Denver were activists of all stripes, some of whom represented activist organizations and other of which represented constituencies. A good portion of the plane trip was spent discussing various activity options with my friend Lee, who invited me on this adventure. Event options include: attending forums on the intersection of religion and politics, the shaping of American foreign policy, DC Vote, and activities hosted by veteran's organizations.

I feel like I am about to experience democracy in a way I have not previously experienced it. By way of background, let me explain that I see the democratic experience as one where members of a community, state, or country gather to communicate with each other about ways to advance the causes of the community, state, or country. In pure democracies, each member of the community, state, or country actually votes in favor or against legislative initiatives. In democratic republics, such as the United States, citizens vote for representatives to legislate on their behalf. However, the democractic experience is not merely the experience of voting. Instead, the essence of democracy is the constructive interaction of various sects and segments of society in ways that further society as a whole. Thus, my sense is that I will observe members of diverse segments of American society gather to discuss ways to advance society as a whole.

In writing this last paragraph, I don't mean to sound naive. I am well aware that that the grouping at Denver will be a select group. All attendees are either members or associated in some way with the Democratic Party. In addition, given the cost of attending this convention, the diversity present will likely not represent the economic diversity existing throughout this society. Also, I am well aware of the economic segregation I am likely to experience. For instance, I don't anticipate meeting Barack Obama personally--although I expect that if I raised millions of dollars, arrangements for an introduction would have occurred. However, none of this will take away from the fact that I am about to be at an event with community activists from every county in this country. Regardless of whether whether the event is as democratic as possible, it will be an important experience in democracy that is rarely experienced in one's own town--because no matter how diverse one's city or neighborhood is, there are not and cannot be activist citizens from every county in this country. Thus, for whatever its faults, I am so excited to experience democracy in this manner.
Posted by Adam W. Marker at 11:03 PM 1 comments
Friday, August 22, 2008
I'm Going to the Convention
Luck struck! The Democratic Convention starts this coming Monday, namely in three days. Two days ago, Wednesday evening, I was talking to my roomate about how interesting it would be to go to a Democratic convention. He joked, "you should just go." I retorted, I wouldn't even know how to get tickets." Less than three hours later, a buddy of mine mentioned, effectively out of the blue, that he had an extra ticket to the convention, and invited me. I have no idea how I lucked out like that. Through this blog, I intend to keep you abreast of my experiences hobnobing with the leaders of our party. Furthermore, I believe strongly in our candidate, Barack Obama. Unlike prior Democratic Presidential Candidates, he was a community organizer for low-to-moderate income neighborhoods. Having been a community organizer in low-to-moderate income neighborhoods, I can tell you that one cannot be a community organizer unless one is seriously committed to the cause of tikkun olam, namely, helping to repair the world. The experience of being a community organizer exposes you to despair, frustration, and a variety of inequities that are experienced in America. Many idealists come to community organizing and leave after a month or two because they feel their goals of "making a difference" cannot compete with their goals of getting ahead in the business community. And as a community organizer, one is often instilled with fear that their activism will cause them to be labeled an opponent of America by those whose financial interests are in competition with the interests of justice and civic virtues. I hope the information I gain over my week in Denver will confirm my beliefs about what Barack Obama is bringing to the Democratic Party and the Country as a whole. Please check into this blog as I try to keep you aprised of these events as they unfold.

Learning Democratic Theory Through Obtaining the Democratic Experience

Relevant Text: Justice David H. Souter, “Remarks on Civic Education,” spoken on August 1, 2009 at Opening Assembly of American Bar Association Annual Meeting. See http://www.abanow.org/2009/08/souter-tells-aba-annual-meeting-opening-assembly-that-civic-education-is-critical-to-preserving-an-independent-judiciary and http://www.abanet.org/publiced/JusticeSouterChallengesABA.pdf INTRODUCTION On August 1, 2009, Justice David H. Souter spoke briefly about the state of civics education in this country, pointing out that constitutional government itself is at risk when a substantial portion of our population does not have knowledge of the government structure under which we live. He pointed out that it is impossible for those who have very little knowledge about our government’s structure to appreciate the importance of judicial independence, and the value of the inherent conflict between the legislative and judicial branches. Thus, he advocated an intensification of the bar association’s efforts in educating the population at large about civics. I contend here that it is not merely education about democracy, but democratic experience, that inspires people to value our system of government and get involved directly in our democracy. THE SOURCE OF SOUTER’S CIVIC KNOWLEDGE: DEMOCRATIC EXPERIENCE The bulk of his talk, however, was a self-reflection on the sources of his knowledge of various principles behind our government’s structure. Most of that knowledge is sourced to his experiences going to annual town meetings in New Hampshire. Through describing his experiences at the town meetings, Justice Souter shows how he had the opportunity to observe first hand the execution of the concepts of divided power (separation of powers) -- between legislative and executive, federalism -- of a sort through divided power between State and town, due process of fundamental fairness --through the Thus, when taught these concepts formally in school, Justice Souter had actual experience with which to appreciate said concepts. THE UNSTATED IMPORTANCE OF REPLICATING THE DEMOCRATIC EXPERIENCE Justice Souter does not fully expound on why his experience attending annual town hall meetings is so worthy of reflection. In fact, in my first read of his talk, I was confused by the relationship between his personal experience and his effort to encourage his audience to personally get involved in advancing the cause of formal curricular school-based civic education. I wasn’t sure if we as readers were to learn from his experience, or only appreciate it. Upon further reflection, however, the relationship is very clear, and essential. A subject of study is real when it affects one’s experiences. Some examples not from the speech are illustrative. Many kids become enamored with football and basketball, and hence became very familiar with the math necessary to understand the game. On the darker side, many kids who become caught up in the drug trade also become quick mathematicians. One can also find that an Orthodox Jew Christian or Muslim may excel at literacy in order to read his or her holy books. Additional analogous examples are numerous. For Justice Souter, attendance at the annual town meeting made real a number of civic and legal principles. More importantly, as a result of real-life exposure to the application of democratic principles, references to them in civics class were not abstract theoretical principles for him, but were reflective of real experience, and thus fully comprehensible. I have not had the opportunity to review any studies of politicians, activists, or lawyers that presented any commonality in their exposure to the civics arts. However, I would venture a guess that most could identify experiences in their youth where the civic arts proved a real part of human life. Thus, the lesson of Retired Justice Souter’s experience is not merely the importance of increasing exposure of legal and civics principles to kids, the the exposure to the fact that legal and civics principles affect every day life. As it was with Justice Souter, this is more likely to be achieved through exposure to real life than by exposure to better written text books. Twice in Justice Souter’s conclusion he states that citizens must be instructed in the government in order to appreciate the importance of judicial independence, and thus to preserve the notion that it is a “safe place” within which to redress one’s grievances with one’s fellow. This is telling, as the word place indicates a locality, which is irrelevant absent an experience in such a locality or place. CONCLUSION The notion of exposing tweens, teens, and young adults to the democratic experience, just as Justice Souter was exposed, sounds to me like a highly practical approach to civics education. Internships, externships, fellowships, and observation days are also common ways of inexpensively exposing worlds to kids. However, there is nothing like going to a community meeting, forum, or hearing concerning subject matters and locations familiar to the student.

A Free People May Require Free Time

The authors of the 2009 America's Civic Health Index (published by the National Conference on Citizenship) entitle their report "civic health in hard times," indicating that the economic downturn of 2008 and 2009 has had a substantial effect on the way in which Americans engage. The primary finding of the report has been that"most Americans said they are reducing engagement and turning inward under the stress of the economic crisis." It appears as if many Americans are more willing to be of personal assistance to friends and family in need then they are to go to community meetings or engage in political campaigns. A partial answer to why people have looked inward to address their economic challenges rather than turn to the political world around them, and the economic norms in which they function, may be found in the findings of Juliet Schor in The Overworked American: the Unexpected Decline of Leisure. Schor, and others, have been concerned that society's orientation towards work has made it practically impossible for their to be broad based commitment to community and political engagement. Several years ago, I wrote an article for socialaction.com concerning a coalition of religious leaders aimed at addressing the effects on Americans of the lack of free time available to the average American for community activities, and thus taking up the issues raised by Schor. (Wanting to preserve precisely what I wrote for reconsideration, I am not addressing any typos, grammatical, or clarity errors that might be found in the article. This essay was written and published on socialaction.com sometime between summer 1999 and fall 2000.)

Free Time, Free People by Adam Marker

I don't know about you, but I feel like I haven't had a free minute since the early '70s. (And I was born in 1974). Do you feel like you've been working a lot recently? Do you feel just a little guilty when you choose to take a vacation-or just take a few hours off?

You're not the only one. It's a societal phenomenon, and community organizers and activists are becoming conscious of this as a social problem. Free Time/Free People is a project designed to educate us about the issue of overwork--and work at finding solutions to it.

The problem

Juliet Schor, in The Overworked American (Basic Books, 1992) concludes: "If present trends continue, by the end of the century, Americans will be spending as much time at their jobs as they did back in the 1920s." For instance, she writes, "with nearly two-thirds of adult women now employed...many working mothers live a life in perpetual motion, effectively holding down two full-time jobs." She adds "Thirty percent of men with children under 14 report working fifty or more hours a week." Her book is filled with statistics of how overwork leads to unhealthy trends-like the replacement of community activity with excessive television watching!

Most Americans feel overworked in one way or another. Most of us think our inability to find time is simply a personal flaw or personal problem rather than one affecting our entire community. We find ourselves saying:"I have no time for my family;" "I would love to be involved in this issue or that issue if only I had a few hours;" and "Let's have coffee; I think I will be available for an hour in two to three months from now." We tend to say to ourselves: "I am overworked; I need to work harder; I seem to be unable to change my mode of living to have more time" rather than "we are overworked; we work plenty hard; we need to change our modes of living to have more free time."

Once we admit that overwork is a societal issue rather than merely one of personal control and decision making, we become empowered to address the problem on a societal level. In the spirit of our not-so-distant celebration of Passover, let's imagine the 4 children from the Seder, "enslaved" by the problem of overwork:

1.The one who works two full-time jobs just to feed his or her family.

2.The one who has reached a level of stature. This one must work at least 60 hours per week to keep his or her job and income level.

3.The one who wants to move up in management. This one dare not take a break lest someone without family obligations take his or her place.

4.The one working in the community and public interest sector. He or she feels that the numbers of hours worked is a reflection of his or her personal commitment to the issue or cause at hand.

This tension, the push to be always working, always productive, always using every minute, is something felt by both low income African Americans in Baltimore and upper-middle class Jews in Bethesda.

The solutions

Barbara Brandt, (director of The Short-Time Work Group) has been trying to address the problem of overwork for a number of years. She points out that overwork makes it harder for people to sleep, concentrate on the job, spend time with their kids, and get involved in community groups. She demonstrates how the almost unquestioned focus on work has spiraling effects, including increased drinking and drug use, decreased citizen participation, less productive work time, as well as a host of other problems-causing the need for more social workers and social activists.

Brandt has been teaching and writing about overwork for a number of years, including a co-authored article published in the July/August 1991 issue of Utne Reader. Ironically, she reports, many activists, upon hearing her presentations, have reacted: "We see your point, but we don't have time to deal with it."

She is excited by the Free Time/Free People project organized by The Shalom Center and others, a coalition of religious and other leaders committed to addressing overwork through educational, cultural, and legislative means. (Click here for what we can do if you are too busy to read the rest of this essay!) She believes that the Free Time/Free People coalition is likely to be more successful than past coalitions because the religious community is taking a leadership role.

Brandt attributes the labelling of the problem of overwork to Professor Ben Honeycut, who calls overwork "the American religion." Because we are obedient and loyal to the culture of work-work-work, we find ourselves sacrificing our communities, our religions, and even our personal passions. Once the concept of continual work and continual production has become a holy end, there is no excuse or reason to choose to eat with one's family, read with one's children, or reject a promotion. Perish the thought that we might take the time to study Torah or pray. How can we justify time worshipping the God of Abraham, Isaac, and Jacob when we could be worshipping the God of Work, Success, and Personal Achievement?

As Brandt explains, "if the problem of overwork is a religious problem, then it requires a religious response."

The Free Time/Free People Project

Rabbi Arthur Waskow of the Shalom Center has convened leaders from Jobs With Justice; the Unitarian Universalist Association; editors of The Other Side; Tikkun and The Witness; The Shorter-Work Time Group; the American Sufi Muslim Association; the Episcopal Diocese of Los Angeles;, and a host of other leaders. This broad coalition has agreed to work together on these specific goals:

• To reduce the hours of work imposed on individuals without reducing their income;
• To strongly encourage the use of more free time in the service of family, community, and spiritual growth.
• To make work itself sacred by securing full employment in jobs with decent income, health care, dignity, and self-direction. (From the Free Time/Free People statement).

Waskow believes that "The Free Time/Free People project is responding to a crisis that people feel sharply in their 'private' lives but have not yet fully understood as a social and economic issue." Some of the specific legislative goals of this broad coalition include:

• A national living wage that allows people to live decently when working between 35-40 hours a week;
• An end to the overtime exemption on supervisors and professionals;
• No compulsory or forced overtime;
• Paid leave to be involved in community groups and the boards of non-profits (at present, only executives enjoy this privilege);
• Strengthening the Family Medical Leave Act and rewarding corporations that give workers more flextime for community.

What we can do

To prevent this from being a dead-on-arrival legislative campaign, Waskow and the other members of the Free Time/Free People coalition are focusing on ways that we, as everyday citizens, can address the cultural aspects of the problem of overwork. Change is unlikely to occur until most Americans see lack of free time as a real social problem requiring governmental involvement for which they need to agitate.

1. Reach out to religious and community leaders. The Free Time/Free People project plans to publish pamphlets about worker's rights with respect to their Sabbath day, and to encourage more participation in Sabbath activities. Religious leaders will be encouraged to create a "Sabbath for the Sabbath" at least once a year, when their own congregation's Sabbath celebration could be focused on a full day of restful reflection.

Waskow is also working with congregations of various faiths and communities to encourage and support "community days," or community festivals when people can come to socialize and be together for an extended period of time. Time is set aside for singing, painting, sharing crafts,and storytelling. While leaders of the project are doing countless initial presentations, they hope to soon help local activists facilitate community days and annual "Sabbaths for the Sabbath' to respond to community-specific needs. Waskow aspires to help all Americans to realize their own need for regular Sabbaths. Signing the Free Time/Free People statement (see below) is also a good way to connect to this project.

2. Educate yourself and others. Meg Riley, Washington director of the Unitarian Universalist Association (which offers sabbaticals to all employees) likens our present approach to this issue to that of many family farmers in the Midwest. Family farmers, says Riley "saw the value of their work go down and down and they consequently worked harder and harder for less and less. They didn't see the issue as political." As do many of the activists involved in Free Time/Free People, Riley warns that unless Americans are empowered to identify overwork as a real social phenomenon that can be reversed, we will remain enslaved by our stress and our notions of powerlessness.

3. Consume Less. Riley also links the lack of free time to the issue of over-consumption. As we gradually have more resources at our disposal, we consequently become dependent on those resources, and consequently require we work harder and harder because the standard has been raised." She illustrates: "Now people say 'of course you should have a car;' There was a time when not everyone had a car and when one who didn't have a car needed a car, they simply borrowed from the person who had one," If we found ways to consume less, we would be comfortable making less and consequently, working less.

4. Take 7. Meg Riley has also taken a proactive step in her own office. She has enacted a policy of 7 minutes of silence a day where people can "think, breathe, snore, pray, or do whatever." She thinks people are more effective as a result.

The real challenge

The instinctive posture for social activists is to think about how institutional change can occur. But let us begin by each thinking about how we push ourselves and push others in ways that are unhealthy. Let's contemplate ways in which we overcommit ourselves and push ourselves to succeed in unrealistic timelines. Let's think about our families and what we can do to get to know them better-and ourselves better.

Can this focus on the self help bring about social justice? Can focusing on our own needs really help us effect real societal changes? The examples and blessed memories of Rabbi Abraham Joshua Heschel and Rev. Martin Luther King, Jr. tell us that it can. They were true to their own personal religious and needs-including prayer, reflection, and a weekly Sabbath-as a basis from which to find the energy and strength necessary to transform society.

[For the full text of the Free Time/Free People statement, a list of its signatories, and a form to join the project, go to www.shalomctr.org.html/comm15.html.]

Reawakening the Spirit of Constitution day: Read the Constitution – And Engage In Civic Discourse Too

Relevant Text: Constitution of the United States; 36 USC Sec. 106 (2004);Linda R. Monk: Words We Live By, Your Annotated Guide to the Constitution (Stonesong Press Books, 2004). Introduction What is a Constitution? If you have ever started a business, nonprofit, community association, or club, you probably know the importance of creating an organizational structure that meets the long term needs of your creation. When organizations employ my legal services to work with them on forming bylaws, I discuss with them questions like (a) who is empowered to make decisions for the organization; (b) who is empowered to determine the leadership; (c) what powers will those leaders have; (d) how will conflicts between members or leaders be managed; and (e) who has the power to amend the charter if need be. On occasion, members of an organization believe that the structure of their entity is so dysfunctional with respect to its grand objectives that the organization must be replaced with another. In many ways, if you have created a business, nonprofit, community association, or club, --and especially if you have done so in conjunction with others having different views of how your business, nonprofit, community association or club should be organized -- you have something in common with the delegates to the Constitutional Convention of 1787. The delegates to the Constitutional Convention in 1787 met to form a structure to the United States government. On September 17, 1787, the delegates to the Constitutional Convention signed their names to their creation, concluding a 4 month convention. Subsequently, the States ratified the new Constitution. What is in Our Constitution? As stated above, the Constitution of the United States is very much like a business’s Articles of Incorporations or Bylaws. It creates a general structure for the major governing bodies of the federal government. One definition of the word Constitution is very appropriate, namely “the manner in which sovereign power is distributed.” The way in which power is distributed between branches of government may be seen through exploring the topics of each Article to the Constitution, namely: (1) Legislative Branch; (2) Executive Branch; (3) Judicial Branch; (4) relationships among the states (aka Full Faith and Credit); (5) the rights and method for amending the Constitution; (6) that the Constitution is the Supreme Law of the Land; (7) the method for ratification of the Constitution. When reading through the Constitution, one realizes that the text appears more focused on creating a general structure within which the government may operate, rather than in articulating or spelling out policies, theories, or methods for acting on the powers thus provided. One reading the Constitution for the first time may find themselves surprised at how much of it lends itself to interpretation, and specifically to contrary interpretations. For instance, Section 8 of Article I identifies various powers of Congress, concluding with a clause stating “ to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution...” One person may consider a particular law necessary to carry out one of the other powers identified in Section 8, and another person may consider that same power unnecessary. Thus, our government relies on the Judicial Branch to rule on disputes concerning the Constitutionality of executed laws. Thus, the extent of Congress’s power has been the subject of ongoing debate. Since the Supreme Court case of Marbury v. Madison, there has been unanimous or near-unanimous understanding that the Supreme Court has a right to interpret the Constitution, and hence, under Article VI. The word interpret means to declare the meaning of something. That interpreting has been going on since. A student in law school studies those diverse interpretations in a course called “Constitutional Law”, a mandatory course for all law school students. Besides learning the current interpretations of various aspects of the Constitution, one learns that the approach to the Constitution has varied over the course of many years. Thus, the norms of this generation are different than the norms of the 1920s, and so on. Thus, without a familiarity of the case law that informs our judiciary, it can be hard to fully understand how a Court would interpret a particular Constitutional passage. What is Constitution Day? In 2004, President Bush signed legislation entering into law “Constitution Day and Citizenship Day.” The Statute may be found at Section 106 of Title 36 of the United States Code. According to the statute, the purpose of the day is to commemorate the formation and signing of the Constitution. Section C specifically calls for the President to invite people of the United States to celebrate the day with appropriate ceremonies. Section D of the section calls for civil and educational authorities of States and local governments to make plans for the observation of the day “and for the complete instruction of citizens in their responsibilities and opportunities as citizens of the United States and locality in which they reside.” Thus, in keeping with Section D of the statute calling for the complete instruction in the responsibilities and opportunities as citizens, the best use of the day is to become familiar with the United States Constitution and the legal system under which we operate. How Should We as Citizens Celebrate Constitution Day? As a lawyer, I may be prejudiced in favor of studying the Constitution by studying the case law over time. Part of this stems from a general interest in textual analysis. Part of this is also due to what I interpret as a general misunderstanding in society about the Constitution itself. Many people on both the left and right are insistent that they possess the sole meaning of the text and that those in disagreement are knowingly lying out of self interest or political motivations. This ulterior motivation is not hard to believe. After all, a liberal advocating universal health care would not invite scrutiny into whether Congress is permitted under Article I Section 8 to create such legislation. A conservative the teaching of creationism or intelligent design in public schools would not invite scrutiny into whether such teachings was advancing religion in violation of the first amendment. There is a certain poetry one can find if one looks at these questions from a distance. One finds a government so well designed that it continues to function in the midst of such soul-wrenching disagreements. In other words, the passionate partisans advocate, they electioneer, and they interpret the Constitution to fit their understanding of what the government should be doing. However, the democratic element remains so alive and well that few fear a revolution of arms—only of ideas. A great way to understand the Constitution is to read Words We Live By, The: Your Annotated Guide to the Constitution (Stonesong Press Books) by Linda R. Monk (Paperback - Feb 18, 2004). The book goes through the Constitutional language line-by-line and highlights some of the most important questions the Courts have had to address. This book is especially useful for those of us not yet familiar with the extent to which there have been so many disagreements about the meaning of particular phrasing within the Constitution. I am not, however, advocating that we spent Constitution day retreating into our dwelling with Ms. Monk’s book -- although I don’t doubt that our society would advance a great deal if the book were read cover-to-cover by all citizens. Instead, the statute of Constitution day advocates that it be a day of celebrations and a day for instructions into the responsibilities and opportunities and citizens of the United States and localities in which they reside. This goes beyond merely understanding and interpreting the Constitution. Although it would be an honest charge to call me a liberal, I don’t mean anything particularly liberal or conservative when I mean here when I say that for the Constitution to mean anything, it must come alive. Some liberals call the Constitution a living document meaning that its meaning for the day should be interpreted in the context of the day rather than the context of 1787. When I call the Constitution living, I don’t mean to engage in that question. Instead, I mean to say that the Constitution lives because it requires a democratically inclined citizenry. Although the amendments are the sources of various individual liberties, the true meaning of the seven articles lie in how engaged the citizenry in what the government does. For Article I to have meaning, the citizenry must produce individuals with an interest in productive legislation. When the citizenry is involved in legislative debates, there is a greater chance that the legislators will be required, through electoral pressure, to adequately represent the needs of their constituents. The constitution provides for elections for members of congress. When those elections involve real participation by citizen groups, not to mention those personally affected by proposed legislation, a real democratic balance between interests is possible. When only those with financial power or those of a particular interest are represented, the democratic nature of the Constitution has not been made real. For Article III to have meaning citizens must be interested in the just and fair execution of the laws, for their service on juries would be meaningless if they were easily bribed or prejudiced in favor of or against defendants of certain skin colors, political views, or economic interests. I will go so far as to suggest that trust in the just administration of justice is essential to the social contract envisioned by the writer of the Declaration of Independence and writers of the Constitution of the United States, and is an essential part of the democratic morality discussed in an earlier essay. Therefore, we should spend Constitution Day in a manner that will advance the cause of the Constitution, namely the democratic impulse and the knowledge required for individuals to engage in that democratic impulse. The statute proclaiming Constitution Day is placed in Title 36 of the United States Code. Title 36 is titled “Organizations Patriotic and National Observances, Ceremonies, And Ceremonies.” Patriotic is defined as the adjective describing one who loves his country and supports its authority and interests. Love is defined as unselfish loyal and benevolent concern for the good of another. Therefore, for Constitution Day to truly be a day to advance patriotism and the responsibilities and opportunities as citizens of the United States, education and citizenship comradery. A Vision of an Engaged Citizenship and Constitution Day I envision a Constitution Day that advances national dialogue. A dialogue is an exchange of ideas between two or more persons. A national dialogue is one in which all citizens in the nation feel the right to actively participate. For a dialogue to run smoothly there must be moderators that facilitate the discussion to assure that listening is occurring. Additionally, there must be individuals of various view points educated to assure that discussion does not get interrupted by the advancement of false prejudices. Thankfully, in so advocating for national dialogue, I am not envisioning anything that is not already in our spiritual constitution as Americans. In fact, the public forum is still alive and well in this country, as many city councils and representatives hold open forums to illicit opinions on potential legislation to evaluate public sentiment and impact. Thus, I want to propose a radical suggestion. Constitution Day should be a day that people take off of work and attend community meetings. One might envision a day divided in two. One part of the day devoted to community meetings that include lectures and educational programming on aspects of the laws in which we live, and another part of the day could be devoted to community meetings in which there is discourse on particular community issues of the day. It would be my hope that either any forum be designed in a manner that advanced educated dialogue. For instance, a dialogue on health care policy should feature an introduction of individuals who can explain existing laws and details about the proposals at issue—rather than a vague notion of whether the government should be involved in increasing access to health insurance. I would also hope that forums would not only concern “hot” issues like health insurance policy and gay marriage, but might engage citizens in serious discussions about housing policy, government contracting, and policies relating to the criminality of drug use and possession. PS: I hope that no reader will chose to agree or disagree with my Constitution Day proposal due to the topic examples I provide. There are a great number of societal decisions that should involve input and insight by the communities affected. Practically, my suggestion would require the existence of multiple forums occurring at the same time, thus providing opportunity to engage the public on a number of political and policy issues.

Jefferson's Invitation to a Democratic Morality

Relevant Texts: Inauguration address of Thomas Jefferson The election of 1800 has been referred to by some as the first peaceful transfer of power between political parties in the modern world. Thomas Jefferson, the victor of that election, referred to the election results as “the revolution of 1800,” probably because there was doubt at the time that such as transition was possible without bloodshed. Fully appreciating this fact can be difficult for generations of Americans so used to the peaceful transfer of power both here and in so many places around the globe. Jefferson, however, does not take this for granted -- and in his innauguration address, not only discusses the importance of democratic transfers of power, but further discusses a vision for social discourse that I here suggest could be described as a democratic morality. Perhaps the most important aspect of Jefferson’s inauguration address is its offering of a distinct image of the status of the United States of America. For one, Jefferson is speaking to a nascent nation. Having commercial relationships with other nations is an accomplishment. Having a functional constitution is an accomplishment. A good portion of his address concerns the anxiety relating to the election cycle through which he has just passed. He points out that the exhaustion and tension that campaigners can have after a vigorous campaign, saying: “animation of discussions and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely and to speak and to write what they think.” This animation and exertions now must be put aside to “unite in common effort for the common good.” Jefferson further says that says that although the majority has rights to institute its will, it must institute reason to, safeguarding the rights of those in the minority. He further refers to the importance of “restoring social intercourse.” Although great historical speeches are worth readings in and of themselves regardless of the historical context, the historical context cannot be ignored when trying to understand why a particular speech has become part of history. The election of 1800 was hotly fought. It was the first time in the modern world that two political parties with numerous disagreements about the shape of its country had challenged each others legitimacy to govern without coming to blows. Here, appreciating the historical context strengthens our appreciation of the text itself. The text itself is a call to peaceful democratic engagement. It favors animated political discourse, a recipe for disaster and violence when the participants involved are not committed to democratic principles. Thus, it provides a vision for a vibrant democratic republic, one which has animated discourse, unafraid of free thought and debate, and also able to accept the consequences of the majority’s victory. Jefferson could have easily taken another approach, one that did not advocate for restoring social discourse or safeguarding the rights of those in the minority. Although I’m not jaded enough to suggest that Jefferson’s own words in the Declaration of Independence were mere puffery, I am asserting that there is a natural tension between governing and advocating democratic principles, minority rights, and social intercourse. In 1801, democratic principles, minority rights, and social intercourse were not features of functioning governments. Even in the United States, despite the institution of the Bill of Rights, the Alien and Sedition Acts were made law. Jefferson thus advocates the importance of free speech, including the rights of those who wish to dissolve the union or change its republican form, as “error of opinion may be tolerated where reason is left free to combat it.” For the past 200 years, this value has been embodied in the First Amendment to the Constitution, and has been the subject of ongoing debate and litigation. However, an inauguration address is not a legal brief. The audience is not a select group of statesmen. Instead it is the general population. Thus, we needn’t read the concepts in their legal contexts, but as they would affect a general population. A general population encouraged to respect free speech and social discourse is being directed towards applying the morality of democracy to their daily living. By morality of democracy, I mean: respecting other’s views, being able to disagree without being disagreeable or violent, recognizing that others mean well even when their approaches to matters are drastically divergent. Thus, Jefferson concludes his talk by subtlely inviting others into what I am referring to morality of democracy. To those who are his political opponents or might become his political opponents, he “ask[s] [their] indulgence for [his] own errors, which will never be intentional, and your support against the errors of others, who may condemn what they would not if seen in all its parts.” Realistically, Jefferson’s words may be seen in two lights. On one hand, he is simply advocating for his political supporters to advance his political causes against those who oppose his actions due to not perceiving the full context of his actions. On the other hand, he is going a step further by asking everyone, friend and foe alike, to recognize that regardless of whether one sees or agrees with the full context of his actions, recognize that he is acting in the best interest of the country, and thus truly inviting the application of the democratic morality to his very time and place.

Invitation to an Investigation into American Ideology

One of the primary failures of education in America is that it suffers from inadequate objectives and purpose, thus often serving to train students in disciplines designed by narrow utilitarian objectives. This idea is thoroughly articulated by Neal Postman in "The End of Education" where he discusses the importance of purpose in making the education process effective. In "Paradoxes of Education in a Republic," Eva T.H. Brann points out that our third President, “proposed to institute his own political cannon” which would have prepared its students to become republican rulers. To that end, he identified certain great books, to be used as text books for such an educaiton. The required texts were to be Locke’s Essays on Government, the Declaration of Independence, the Federalist Papers, the Virginia’s Resolutions in the Alien and Sedition Laws, and Washington’s Valedictory Address.” See Brann at 99. This cannon directs the mind to appreciate the republican form of government, and the concept of participatory democracy for which it is erected. This is the mindset with which we are invited to ascribe. This ideology is that humanity is inherently well suited for democratic society, but for democratic society to function, the citizenry must be properly sculpted to be fully engaged in that democratic republic. According to Professor Thomas Jewett, writing in Early America Review (Winter 1996), Jefferson saw universal education as an essential companion to universal suffrage, and went so far as to support federal support for education. Per Jewett, Jefferson’s educational system had six objections: (1) To give every citizen the information he needs for the transaction of his own business; (2) To enable each citizen to calculate for himself, and to express and preserve his ideas, his contracts, and accounts, in writing; (3) To improve, by reading, his morals and faculties; (4) To understand his duties to his neighbors and country, and to discharge with competence the functions confided to him by either; (5) To know his rights; to exercise with order and justice those he retains; to choose with discretion the fiduciary of those he delegates; and to notice their conduct with diligence, with candor, and judgment; and (6) in general, to observe with intelligence and faithfulness all the social relations under which he shall be placed. Thus, American ideology says society is well organized when its citizenry are properly educated and situated to establish and participate in democratic institutions. In this blog, in further essays, I will seek to best understand, define, and question this ideology.

Should Civic Literacy and Legal Literacy Be Married?

In a recent piece, I mentioned the issue of legal literacy as an element of access to justice issues.

To define, “access to justice” is the extent to which non-wealthy citizens have access to the judicial system sufficient to obtain remedies to legal problems.

 Legal literacy is the extent to which individuals are aware of the general framework of the legal system, and knowledge of how to address legal problems within it.

 To me, it is axiomatic that legal literacy must be an aspect of “access to justice” issues because one who is unaware of their rights under the law would have no reason to discover how to access justice. 

Facts that reflect on access to justice issues include the estimation that only 33% of statistically expected legal needs of Maryland’s poor and near poor are addressed. More broadly, Michael Greco, President, ABA, writes that “numerous reliable studies at the national and state levels have documented that 70% to 80% of the civil legal needs of poor people go unaddressed year after year.            
The term, “Civic literacy” refers to knowledge by individuals of how government works. Courses in civics generally focus on organizational facts, such as the fact that our federal government is divided into 3 branches of government, and that there are 50 states, or the separations of powers concept. Facts that reflect on civic literacy issues include national studies (for instance a 2005 study commissioned by the American Bar Association) that show that only 55% of adult Americans “can correctly identify the three branches of government,” only 45% can identify the meaning of the concept of separation of powers, and only 36% cannot correctly identify the principle of checks and balances.

 In studying these two issues, I have confronted what I believe to be the oddest and most unnatural dilemma. Generally, I am finding literature on civic literacy divorced from literature on legal literacy. Accordingly, when trying to appreciate the societal landscape of organizations addressing civic literacy and legal literacy, I find myself being asked to make a choice I find unnatural, namely, am I trying to assess the landscape of programs addressing issues of legal literacy, or civil literacy? It is fair to say that there are intellectual or conceptual differences between the framework of the governmental structure in which we live, the framework of the laws under which we live, and an individual’s rights to protect one’s rights under those laws or push for new ones.

From the engaged citizen’s standpoint, it all goes hand in hand. The engaged active citizen is both politically active, such as in supporting various candidates, able to protect (either personally or through locating counsel) his or her rights under the law (either as a plaintiff or defendant), and is knowledgeable how to advocate for or against government action between election cycles, such as when citizen groups speak out on laws relating to anything from abortion to inclusionary zoning, or on whether a police commissioner should be fired for engaging in racial profiling.

 A 2002 report by the United States Agency for International Development Office of Democracy and Governance found that civic engagement programs were most effective when participants learned about opportunities for participation, in addition to concepts relating to participation. It would be illogical to think legal literacy functions differently. It is the engaged active citizen model that interests me because it encompasses legal literacy, civic literacy, and the ability and confidence to act on both fields of knowledge.

 It is my opinion that any citizen who lacks any of these three aspects of being an engaged active citizen, namely being (1) civically literate, (2) legally literate, and (3) familiar with one’s rights to advocate is not fully an engaged active citizen, and may require education to compensate for the lack. In The End of Education, Neal Postman posits that successful educational systems are one where the ends are clearly defined. Thus, I think absent the clearly defined goal of an engage active citizen, civic literacy efforts and legal literacy efforts will inevitably ultimately fall short in some manner.

Book Recommendation: Rhode’s Access To Justice Discusses Ways to Make Justice More Accessible

Although a short book, only 194 pages, Deborah L. Rhode, in Access to Justice (Oxford Press, 2004) succinctly (1) defines the concept “access to justice; (2) articulates where our legal and judicial systems fail to live up to the concept’s ideals, while at the same time, (3) explains the paradox that while this is the case, namely that a huge number of legal needs of the poor go unmet, many are of the opinion that there are too many lawyers creating too many lawsuits over too seemingly petty things. (4) Rhode proceeds to offer numerous policy suggestions designed at increasing access to our judicial system for those in society without means. One of the most important aspects of the book is the analysis of the concept and ideal “access to justice.” On a superficial level, the concept means that any person with a legal grievance has the right to go into a courthouse and pursue a lawsuit, or defend themselves against allegations. It also means that anyone who is legally defined as indigent may obtain the assistance of counsel when defending themselves in criminal proceedings. Rhode cites a study that says that four-fifths of Americans believe our judicial system is the “best in the world.” Presumably, most or all of them are under the impression that having the legal right to enter the courthouse is tantamount to the ability to engage in a full enforcement of those rights. In fact, elsewhere I have read that only 33% of Americans believe that low-income persons have a difficult time getting legal help with civil matters. As Rhode points out, and is really the point of the book, access to justice is more complicated than one’s legal right to walk into a courtroom and state one’s position to a judge. From a criminal law defendant’s position, it is important that one has access not only to the courtroom, but to the knowledge of what charges are being brought, what evidence exists, what legal options exist for defending, and what plea-bargain (negotiated resolution) options are realistic and appropriate Practically, there are huge hurdles. Court appointed defense lawyers receive only one-eighth of the resources available to prosecutors. Additionally, defense attorneys are often paid a small set amount per case-giving a disincentive for them to sufficiently place their energy and resources in more complicated cases when a volume of cases is required to make a reasonable living. This is even more complicated by the fact that for a defendant to prove malpractice, they would need to prove it is more likely than not they would have won their case but for the poor assistance of counsel, which is near-impossible for someone fully dependent on counsel in the first place. Similarly, outside of the criminal law context, many individuals, have challenges in life that could be resolved legally if they knew their rights under the law. For instance, in my field, employment law, many are unaware when they do and do not have rights to legally challenge decisions made by their employers. Further, even when employees know their rights, the cost of litigation is often too prohibitive unless they sue under a statute that provide for the opportunity to recover attorney fees as part of their recovery (known as fee-shifting), I have also observed that some individuals owning small businesses have very little knowledge of or are confused about their legal rights with respect to those failings to comply with agreements entered into. I suspect this is also the case in many other fields. Rhode specifically mentions several legal needs the often go unmet in low income populations, namely: children with mental disabilities unable to get proper assistance in schools; brain damaged children and elderly citizens on fixed income unable to get medical treatment; impoverished nursing mothers unable to challenge the use of dangerous pesticides near them; important legal and strategic help to women and children who want to leave violently abusive men. More broadly, in 2008, an Access to Justice Commission in the District of Columbia found that 90% of the civil legal needs of the poor go unmet. In 1993, an American Bar Association study found that nationwide, between 70% to 80% of the legal needs of the poor go unmet. In 1991, a study commissioned by the Ohio State Bar Association (along with other state legal associations) found that 83% of their poor’s civil legal needs went unmet. When these problems go unaddressed at first, they become much more expensive and challenging legal problems later. Causes of these problems include under-funded criminal defense attorneys, legal service corporations, procedural hurdles that are extremely complicated for those not highly literate, only 13% of Americans know to when extent there are legal aid organizations available to them, many law firms give a disincentive for their associates to engage in pro bono or low cost services, requiring over-worked lawyers to conduct such work on their own time, if at all. Throughout her book, Rhode suggests ways in which our legal community can address these problems. Suggestions include increasing access to self-help resources in courthouses, altering Rules of Professional Conduct to permit attorneys to strengthen their ability to provide discrete legal services without having to choose between “taking the case” and providing no assistance, and giving the Legal Services Corporations to assist with community organizing and more discretion to take a more varied case load. I anticipate that this book will become a seminal book in the study of the legal community’s obligation to those unable to afford legal assistance. Perhaps it already is. In addition, should I ever teach a law school course in Professional Responsibility, I would be sure to have my students read this text, as it raises the most essential questions concerning our profession’s obligations to those in need. There are a few questions worthy of analysis for which Rhode’s book is a proper starting place, with follow-up analysis required. First, are there additional fields in which fee-shifting should be permitting to make full blown legal representation more possible in those fields? Second, are there specific legal rights and legal information which is so important to one’s ability to function in society that the legal community should assume responsibility for fully educating the public? Third, to what extent should the legal community’s fee methodology be regulated to assure the needs of fair access by the population at large. Regardless of how these questions are answered, they are clearly worth asking.

Study 4th: Making the Fourth of July a Real Democratic Experience

I never understood why one does not see intense community activism on or around July 4th every year. Conceptually, the day lends itself to democratic activism. ON July 4, 1776, the Congress of 13 American British Colonies of the British Crown declared their independence from that Empire. However, thinking about July 4th as an anniversary of a mere legislative enactment misses the point. During the 20th century, many colonial governments separated from their European Colonizers. However, thinking about July 4th as merely the first of many peoples to separate from the requirement to obey a distant power also distorts the experience that July 4th can and should represent. In an earlier essay published to this blog on November 2, 2008 entitled “Getting at the Origin of Civic Health.” I attempted to describe the social contract envisioned by the Declaration of Independence. Prior to the Declaration, however, Thomas Paine published a pamphlet entitled Common Sense. In it, he presents to the public an argument in favor of separation from Great Britain. Historians believe that this pamphlet had a huge impact encouraging Americans to favor independence from over reconciliation with Britain. It is crucially important to recognize the similarities in the arguments presented in the pamphlet and those presented in the Declaration. Similarities between the arguments used to encourage citizens of the Colonies to support separation from the British Crown with those used to formally advocate on the world stage is highly probative of the true motives of the movement itself. The Declaration describes the purpose of government as securing the citizens’ “unalienable rights” of “life, liberty, and pursuit of happiness.” Common Sense, in its introduction, describes “security [as] being the true design and end of government.” For Paine, government is “…rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government viz, be freedom and security.” Paine is concerned with the nature and role of government. He envisions the formation of a democratic republic. He advocates strongly against the notion that a monarchy, even a constitutional monarchy, could be relied on to provide for the rights to humankind. For Paine, the primary problem with monarchy is that it places decision-making in a person shut from the world—at least during the time holding office, thus unable to truly experience the needs of the people. The Declaration of Independence does not attack monarchy in principle, but attacks the British monarch. The Declaration discusses “consent of the governed” as being an essential element of proper governance, but that the proper structure is a democratic republic is not self evident from the Declaration document. In “Getting at the Origin of Civic Health,” I argue that the Declaration had a participatory democracy in mind when Jefferson wrote that it is the inherent right of the people to alter or abolish their government, and this can only happen in a participatory democracy. I point out 20 rights that can be secured only through a participatory democratic regime. That said, it must be admitted that although it is difficult to imagine in reality, one could conceptualize a non-democratic society meeting the standards identified in the Declaration of Independence. Looking at the Declaration in the context of Thomas Paine’s writing, however, we should have no more doubt that the founders envisioned a participatory democracy when conceiving of their independence from Britain. First, Thomas Paine goes through efforts to show how Scripture itself opposes monarchial government in principle, identifying monarchy as one of the sins of the Biblical Jews. Then, Thomas Paine describes the evils of hereditary succession. Paine then proceeds to glorify the republican form of government, including the aspects of English government that is republican in nature, the concept of a representative legislature chosen from among the people. Paine goes so far as to suggest that legislation should not be allowed to pass without 3/5 of the members of the legislature. Paine’s argument additionally describes a nation with diverse religious perspectives. In short, his text is not only an argument in favor of separation from the British Crown, but an argument in favor of establishing a democratic republic in its place. The Fourth of July is therefore a memory of democratic activism. Thomas Paine and the Declaration describe the inherent right of all peoples to establish free governments that provide for freedom and security. However, the Fourth of July is also a memory of the experience of seeking government structural change not merely by power, but by advocacy. Although the audience of the Declaration of Independence were powerful people in other nations, the audience of Common Sense was the common man in America. Common Sense was not merely an invitation to take up arms against Britain, which could have been done with the elements of Common Sense and the Declaration that involves identifying wrongdoings of the British Crown, but an invitation to participate in the soon-to-be democratic republic. Common Sense did not merely ask its readers to trust their predefined leaders, but invited its readers to envision and advocate for a participatory democracy where they would be represented. Thus, true celebrations of the Fourth of July should involve discussions of democratic institutions, and the advocacy of their protections and growth.

Case Note: The Case of What Makes An Appointment in Illinois

In Law in America, Lawrence Friedman says he often starts his class on “Introduction to American Law” by illustrating that “every domestic story in the front page of the newspaper …has a legal angle—has some connection with the legal system.” This month in Illinois politics was no exception. The political question is whether it is appropriate for a disgraced governor (Illinois Governor Rod Blagojevich) to make an appointment (Roland Burris) to fill a vacant seat in the United States Senate, when that same Governor, prior making such an appointment, was accused of trying to sell that very Senate seat—thus leaving open the possibility that the appointee is a beneficiary of graft. In other words, is such an appointment so tainted that Illinois and the United States Senate is better off without an appointed Senator from Illinois than any Senator appointed by the disgraced governor. Two actions have occurred that raises legal questions. First, the Illinois Secretary of State has refused to certify the Blagojevich’s appointment of Burris. Second, the Senate has refused to seat Burris due to the lack of the Illinois Secretary of State’s signature on the form the Illinois governor used to effect the appointment. Burris asked the Illinois Supreme Court to rule that the Illinois Secretary of State was required to certify the governor’s appointment The Illinois Supreme Court actually ruled that under Illinois law, the appointment was effective when the Governor made it, that no signature by the Illinois Secretary of State was required for the appointment to be effective, and therefore the Illinois Supreme Court would not rule that the Illinois Secretary of State was required to certify the appointment. Following this victory, the Senate has now chosen to welcome Burris as one of their own. No matter what the ruling, the case was likely to become a decision useful at illustrating the constitutional concept of separation of powers. From an educational perspective the decision itself goes further than that, namely by illustrating: (1) the role of the judicial branch of government in engaging in legislative interpretation; (2) the role of the judicial branch in possibly ordering a member of a State’s executive branch to take a particular action; and (3) the courts unwillingness to overstep its bounds, thereby achieving the same result as the one intended if it issued the order sought by the plaintiff. (1) The Role of The Judicial Branch of Government in Engaging in Legislative Interpretation This decision is an excellent one to review in understanding the concept of separation of powers and judicial review. In America, Congress and State legislatures are empowered with legislative authority, namely to enact laws; the President and the various governors, as chief executives, are empowered to execute the laws made by the legislative branch; and the federal and state courts are empowered to interpret the law. The United States Constitution is called a constitution because it articulates the basic organizational structure of the United States government. Thus, it would be unlawful for one of the branches of government to take action that contradicts the framework established in the Constitution. Doing so would make our system of government completely different. In fact, according to Marbury v. Madison, the Constitution would be rendered purposeless if it could not restrain the other branches of government by the framework established. Accordingly, this decision begins with a description of the seventeenth amendment and its inherent implications. The seventeenth amendment permits state legislatures to empower governors to pick successors for senate vacancies until there is an opportunity for the state to have an election for replacement. Accordingly, the Illinois state legislature enacted statutes articulating procedures to complying with the seventeenth amendment. Thus, the judicial branch is responsible for interpreting (defined as: stating the meaning of) the constitution and statutes to assure (a) that the statutes are consistent with the constitution, and (b) that it is clear how to apply the statute in a given situation. Like most decisions, this decision relies on prior judicial decisions in its analysis. Hence, one unfamiliar with reading decisions should appreciate the role of citations to prior decisions in the analysis of this issue. In the interest of consistent and reliable judicial making, courts treat past decisions (precedent) as generally binding when that precedent is not contrary to the underlying statute. This case also provides an interesting deviation from the normal process of relying on precedent. Here, the court adopts an opinion by the state attorney general on a matter where there is no precedent available. The court points out opinions by attorney generals are not binding—but they are entitled to “considerable weight.” The Illinois state legislature enacted a statute that provides for commissions and for appointments. For commissions, the Illinois Secretary of State is required to affix the state seal on commissions, and for appointments, the Illinois Secretary of State is only required to make a register of all appointments. This legal distinction is the heart of the decision by the Illinois Supreme Court, namely that Illinois Governor Rod Blagojevich appointed Roland Burris to the role of Senator, he did not issue a commission. Therefore, the duty of the Secretary of State to affix the seal on commissions is not applicable. Accordingly the appointment was affected when made by the Governor. Although this logic makes the analysis appear straightforward and obvious, had this distinction been completely obvious to the parties, Burris would not have brought suit demanding the Secretary of State sign the appointment as if it were a commission. (2) The Role of the Judicial Branch in Possibly Ordering a Member of a State’s Executive Branch to Take a Particular Action As described above, courts engage in a process called judicial review, namely determining whether a statute is constitutional. Analogous to the concept of judicial review is a writ, namely an order of a court for an executive to take action in some manner. We as citizens are often familiar with this in the criminal context without giving it much thought, namely that a judge in the judicial branch of government has authority to tell employees of an executive branch (in some situations police officers and in this situation the state secretary of state) how and what to do. Alleged criminals are released, taken into custody, awarded money, deprived of money by members of employees of the executive branch—at the instruction by members of the judicial branch. This case goes one step further, providing an illustration of the expression “government of laws, not of men.” In this case, one member of the Illinois executive branch (Secretary of State Jesse White) disagreed with actions taken by another member of the Illinois executive branch (Governor) and thus refused to sign off on the appointment, as requested, namely refused to sign the appointment paperwork. In this case, the court determined that no signature was required to effect the appointment. However, had one been required, the court might have instructed one member of the state’s executive branch to comply with instructions by another member of the executive branch. Alternatively, the court might have determined that the secretary of state had discretion to approve the appointment. In either case, this case is illustrative of the judicial branch’s power to give binding instructions to the other braches of government concerning how to use their power. Those who have familiarity with our legal system may know a term: political question. Courts are only obligated to answer legal questions, not political questions. (3) The Court's Unwillingness to Overstep its Bounds, Thereby Achieving the Same Result In this case, the Illinois Supreme Court was asked to require the Secretary of State affix the state seal on the appointment. The result was to determine that the appointment was effective upon the governor’s actions, and that action by the Secretary of State was not necessary. Arguably, the court would have achieved the same result had it ordered the Secretary of State to affix the state seal, which is what the plaintiff wanted. In some ways, the court followed a path distinct from that sought by either party. It refused to require the Secretary of State to affix the seal on the appointment. It also refused to give the Secretary of State any discretion regarding approval of the appointment. In fact, had the Senate leadership decided that to nevertheless insist on certification by the a signature by the Secretary of State, Burris would not have been in a better position after the court decision. This case could have gone to the United States Supreme Court on whether the Senate has discretion to establish rules for appointments beyond what is legally required in the respective states. . Thus, this case illustrates the limits courts put on themselves in terms of resolving conflicts. This court does not actually provide any guidance to the parties as to whether Burris should be in the senate. Its sole decision is that its hands are tied because Burris is seeking a result the court is not authorized to enforce. The mechanism is very noteworthy, namely, to analyze the language of the text of the law to determine what the law means and what the law actually requires. The concept of “political question” may be applicable here. It may be the custom for the secretary of state to affix the seal on appointments, just as he does for commissions. That custom could have political significance. This court does not address this question so we don’t know. And frankly, like any court decision, I am sure that one could analyze it and derive multiple different results and different legal issues that weren’t addressed. However, I think this case decision is uniquely positioned for one to appreciate the role of the courts in refereeing the other branches of government—and framing how legal analysis actually works.