Sunday, November 2, 2014

Martha Coakley Has No Problem with Non-Citizens Voting

Res Publica
Martha Coakley Has No Problem with Non-Citizens Voting
by David Trumbull -- October 31, 2014

Recently Martha Coakley said she believes that allowing non-citizens to vote in local town and city elections should be an option for municipalities to choose for themselves, showing, once again, how out of touch she is with the citizens of Massachusetts.

She has been roundly denounced. Some have even suggested that our Attorney General needs a refresher course in constitutional law because, they say, such a proposal is contrary to the U.S. Constitution. Here I must part with my fellow conservatives, for, no matter had bad the idea of aliens voting in our elections may be, it is, nevertheless, perfectly constitutional.

The U.S. Constitution, as it went into force in 1787 said absolutely nothing about qualifications for voters, leaving it entirely in the hands of the states. At the time no state prohibited non-citizens from voting. There were other restrictions. In Massachusetts the electoral franchise was restricted to male inhabitants (not limited to citizens), 21 years of age and older, and owning a certain amount of property. Most states had similar requirements. Southern states further restricted the franchise to Whites only.

Some states limited voting to citizens starting after the War of 1812, which generated an enhanced sense of patriotism. More banned it in the 1840s and 1850s. Two notable things were happening around then-- (1) the 1848 revolutions in Europe caused many Americans to regard foreigners with suspicion and (2) the beginning of the flood of Irish Catholic immigrants who threatened the political supremacy of English, Scots, and Scots-Irish Protestants. But the big wave of states banning voting by non-citizens was in the early twentieth century. Then a new wave of immigrants from Italy, the rest of Southern Europe, and Eastern Europe, again awaked nativist fears about "inferior races" and Catholics and Jews. It was not until the election of 1928 that all states had limited voting to citizens only.

The Constitution has seven times been amended to regulate voting.

(1) The 14th Amendment, ratified February 3, 1870, said that states could not deny the vote to African-Americans. In Massachusetts American-Americans had the vote since the 1780s.

(2) The 17th Amendment, ratified April 8, 1913, provided for the direct election of U.S. Senators. The amendment stipulated that, "The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures," again, recognizing that qualification of voters is a state, not national, right.

(3) The 19th Amendment, ratified August 18, 1920, said that states could not deny the vote to women. In Massachusetts women had been able to vote since 1879, but only for school committee, not for any other offices.

(4) The 22nd Amendment, ratified, February 27, 1951, limited the President to two terms.

(5) The 23rd Amendment, ratified March 29, 1961, gave the District of Columbia votes for President and Vice President. It did not specify whether D.C. voters had to be citizens.

(6) The 24th Amendment, ratified January 23, 1964, said that states could no longer assess a "poll tax" for voting.

(7) The 26th Amendment, ratified July 1, 1971, said that states could not limit voting based on age in the case of citizens who are 18 years of age or older. Interesting, there is nothing in the Constitution hindering states from choosing a lower age. In Maine 17-year-olds can vote in a primary election, as long at they will be 18 by the time of the general election. Maine is not the only state to allow voting by 17-year-olds.

Clearly, nothing in the Constitution prohibits voting by non-citizens. In New York City non-citizens voted in elections for school board until 2002 (when the board was made an appointed rather than elected body). The reasoning behind this is that many non-citizens have children in the public schools and are taxed to support the schools. A few, very few, other municipalities allow non-citizens to vote in at least some local elections.

Currently it is illegal for aliens to vote for President, Vice President, U.S. Senator, and U.S. Representative. That restriction is found not in the Constitution, but in a law [18 U.S.C. §611]. It was passed as a part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Given that the Constitution gives to the states, not Congress, the power to regulate qualifications for voting (except that the states cannot disenfranchise specific classes of voters under the provisions of the 14th, 19th, 24th and 26th amendments) I question whether the federal prohibition on aliens voting in national elections is itself constitutional. Derek T. Muller, Associate Professor of Law, Pepperdine School of Law, also questions the constitutionality of 18 U.S.C. §611.

Saturday, September 27, 2014

Suffolk Downs, 1935 - 2014

Res Publica
Suffolk Downs, 1935 - 2014
By David Trumbull, September 19, 2014

"We are extraordinarily disappointed as this action is likely to cost the Commonwealth thousands of jobs, small business and family farms. We will be meeting with employees and horsemen over the next several days to talk about how we wind down racing operations as a 79-year legacy of thoroughbred racing in Massachusetts will be coming to an end, resulting in unemployment and uncertainty for many hard-working people." -- Chip Tuttle, Chief Operating Officer, Suffolk Downs.

Mary and I are so sad, remembering fun times at the track on Saturday afternoons. Friends would join us. Mary's father loved going to the track with us. On Kentucky Derby Day we'd dress in our finest -- with Mary taking special care to pick out a fabulous hat -- and bring along sugar and fresh mint to mix with the Bourbon we bought at the track -- voilĂ , hand-crafted mint juleps!

In the early 2000s I attended a small Anglican church that met in Cambridge in the Swedenborgian chapel across from Harvard Yard. Our priest, Bowen Woodruff, was also an unpaid chaplain to the jockeys at Suffolk Downs. The jockey's job is demanding and dangerous. Jockeys can be injured, even killed, in a race. Many are not locals, in fact many are natives of South America. They are engaged in a difficult occupation, thousands of miles from home and family. They move from track to track, following the racing season and seeking to advance their careers. They have little opportunity to attend regular church services. They truly appreciated having Fr. Woodruff hold a Bible study with them on Wednesdays at the track. On Saturdays several of us from the church would go to the track, accompanied by Fr. Woodruff in his clerical "dog collar." The arrangement was that he would bless our bets, with the understanding that we would tithe on the winnings. He never bet himself as he feared that people might mistake his familiarity with the jockeys for some sort of "inside information."

The closing of Suffolk is not just about the people who work at the track -- the jockeys, the workers at the restaurants and concession stands, and others. There are the trainers, and all the people who work at the farms -- often family farms -- where the horses are raised, and all the vendors who supply those farms and the track. If, as I hope, the voters of the Commonwealth approve casino gambling this November, some of those jobs will be retained at a new casino in Everett. But we will have lost one of the things that made Boston a wonderful city to live in. No longer can I, for the cost of a short Blue Line trip, sit outside on a perfect summer day, enjoy a hotdog and cold beer, while watching magnificent horses, loving cared for and trained, compete in one of the most thrilling sporting exhibitions.

Friday, August 29, 2014

United We Stand with Arthur T.

Res Publica

United We Stand with Arthur T.

September 5, 2014

In is fitting that the Market Basket workers' strike, which began as a protest rally at the Chelsea store on June 24th, ended on August 28th, the Thursday before the long Labor Day Weekend. Labor Day honors every workingman and woman in America, but we all know that its origin lies in the recognition of the advances in employer-employee laws and practices wrought by organized labor, that is to say, labor unions. And, therein, lies two ironies.

The summer of 2014 witnessed a successful organized labor action on a scale we haven't seen in decades. Organized? Yes. Unionized? No.

Striking Market Basket employees took on the board of directors and won. The board of the company, which was owned in majority by allies of rival cousin Arthur S. Demoulas, was forced to back down, give in, and make the deal to bring back Arthur T. The workers were greatly helped by thousands of customers, and even some vendors, who joined in a boycott. But what they did not have was a union. A union would have provided institutional memory of past labor strife, professional staff to organize workers and confront management, and reserves of funds to assist striking workers and their families.

With their livelihoods at stake, how, went conventional wisdom, could semi-skilled workers have any chance of prevailing over management without a union? But the Market Basket employees did prevail. Throughout the protests employees were quoted in the press saying, We don't need a union, we have something stronger, we are a family. It's truly an inspiring story. But, also, an unusual, almost unique, story. Who needs a union when you have a boss, Arthur T., who gives you better pay, benefits, and sense of being stakeholders in the company than you are likely to get under a union contract?

Furthermore, don't discount how past union activity benefited the Market Basket employees. When the employees walked off, the new management threatened to fire them. Now, from a practical standpoint the board would have been sore pressed, even in this weak labor market, to quickly find qualified replacements for the entire workforce, nevertheless, the threat of losing you job would surely have forced many protesting workers back to the job, one would expect. But they did not return. Why? Because you cannot fire workers for striking. Its a federal law, The National Labor Relations Act of 1935 (commonly called the "Wagner Act"), that guarantees the right to unionize and to strike without retaliation. When management threatened to fire the workers, they filed a complaint with the National Labor Relations Board, using that pro-union law for protection.

The Labor Management Relations Act of 1947 (commonly known as the Taft-Hartley Act) modified the Wagner Act. Specifically it placed some restrictions striking, among other things, requiring an 80-day notice period before a union strike. Perhaps because in 1947 the terms organized labor and unionized labor were, functionally equivalent Taft-Hartley placed no such restriction on non-unionized workforces. Therein lies the second irony. These non-unionized workers successfully used a pro-union law, but had they been unionized the strike, at least as it was conducted, would have been illegal.

Saturday, July 26, 2014

The Customer May Not Always be Right, but He is the Customer

Res Publica
The Customer May Not Always be Right, but He is the Customer
By David Trumbull -- July 25, 2014

Last week I wrote about Uber and Lyft, two relatively new car services that are making a big dent in the taxi business. The services are wildly popular with riders who, for years, have been stuck with not much alternative to broken down wreck taxis, driven by surly drivers who refuse to put on the air conditioning in the summer, pad the bill, refuse to accept credit cards, and are so engaged in their loud mobile phone conversations in foreign languages that they don't pay attention to the road and put the passengers at risk of serious injury.

Passengers see Uber and Lyft as the solution to poor quality taxi service. Local governments see Uber and Lyft as the problem. The Peoples Republik of Cambridge has tried repeatedly to ban Uber and Lyft. Cambridge is not alone in opposing giving riders the options they want. But, in city after city, the politicians have had to back down. They are learning that they cannot stand athwart history yelling STOP. The people want Uber and Lyft and will not tolerate elected and appointed officials abusing their offices to come to the aid of the old taxi monopoly.

It is, for me, exciting to watch a supposedly immovable object, the taxi company/municipal government symbiotic relationship, get pushed aside by the irresistible force that is People Power. People Power is being asserted elsewhere, in the current struggle over the future of the Market Basket chain of food stores.

The Greek drama that is the quarter-of-century-old Demoulas family feud over control of the business that Athanasios and Efrosini Demoulas started in Lowell in 1916 is worthy of a made-for-TV miniseries. The family lawsuit in the early 1990s over ownership nearly destroyed the business, but it survived, and indeed thrived.

Market Basket customers love the store. We love the low prices. We love that although it is a chain, the selections in store are tailored to the local community -- the Methuen store abounds in Italian delicacies, the North Andover store serves the Syrian community, the Chelsea store is a little Latin America. The employees are extremely knowledgeable, helpful, and cheerful, making marketing a pleasant experience. As for the employees, they are well paid and treated with respect by management. Who needs a union when your boss makes you feel like a family? This model of low prices, great selections, and a happy staff has worked, making the Demoulas family one of the richest in the Boston area.

By now you have seen the news -- massive walkouts of Market Basket employees, a widespread customer boycott, and rallies across the state demanding the re-instatement of Arthur T. Demoulas as CEO. How will it end? I don't know. But however it ends, the board of this closely held, family-owned business will be forced to act in response to a spontaneous outburst of People Power.

I have not seen anything in America quite like it in some time. Next year will mark the 30-year anniversary of the Coca-Cola Company's disastrous launch of New Coke. Then, too, a corporate board learnt the lesson that there is someone more powerful than the stockholder; that is the Customer.

Saturday, July 12, 2014

Persons, not People

Res Publica

Persons, not People
July 11, 2014

My Facebook friends on the political left are, once again, in the wake of the Hobby Lobby decision riled up over the Supreme Court and clamoring, again, for a constitutional amendment to say that, "Corporations are not People," thus, they believe, over-turning the 2010 Citizens United decision.

Well, of course corporations are not people! No one ever said they were. Okay, I concede, Mitt Romney did say that during the 2012 presidential campaign, but Romney never did strike me as being very bright. People, from the Latin populus, means human beings taken as a group, whether construed as a singular or plural noun. Clearly, corporations are not people, as they are not human. Liberals demanding a, "Corporations are Not People" amendment might just as well call for a, "The Moon is Not Made of Green Cheese" amendment. Corporations are, however, persons, something that, for centuries until 2010 was never doubted.

A person (from the Latin persona) in the eyes of the law, is an entity with legal standing. A person can sue and be sued, own property, enter contracts, and employ other persons. As far back as ancient Roman law and through the English Common Law that forms the basis for American law, corporations have been recognized as artificial persons. If Hobby Lobby and Citizens United were not "persons" they would have had no standing to sue, nor would the laws they were protesting have applied to them, as the law operates on persons only.

The doctrine of corporate personhood was explicitly enunciated by the Supreme Court nearly 200 years ago in the celebrated Dartmouth College. In the 1819 Dartmouth case the legislature of New Hampshire attempted a hostile takeover of the school, a private corporation, in order to treat it as a public institution and run it as the state saw fit. The brilliant Daniel Webster argued for the corporation that "...its rights stand on the same ground as those of an individual."

The Court agreed, and Associate Justice Joseph Story in his concurring opinion wrote (emphasis added): "An aggregate corporation, at common law, is a collection of individuals, united into one collective body.... It is, in short, an artificial person, existing in contemplation of law, and endowed with certain powers and franchises which, though they must be exercised through the medium of its natural members, are yet considered as subsisting in the corporation itself, as distinctly as if it were a real personage.

Law, not nature, created corporations, and the law may operate differently toward corporations than toward individuals. For example, corporations cannot vote, be drafted, or serve as public officers. The question is what rights of a natural person do we give to artificial persons. I believe the court decided correctly in the Citizens United and Hobby Lobby cases. Others, including some of the Supreme Court Justices, disagree. But the solution, if you think the court erred, is to address the specific errors, not throw what has served us well for hundreds of years -- the legal doctrine that Corporations are Persons.

Thursday, July 3, 2014

Citizens, Not Subjects.

Res Publica
Citizens, Not Subjects.
July 4, 2014 -- by David Trumbull

On this date in 1776 the delegates to the Second Continental Congress declared that the people they represented were citizens of the United States and not subjects of His Britannic Majesty, George III.

The document by which this shift of allegiance and status was proclaimed is tripartite. The preamble contains a general justification of self-government. It ends with the formal declaration of severance of ties to Great Britain and the establishment of the United States of America. Between the beautiful prose of "When in the Course of human Events..." and "We hold these Truths to be self-evident…" and the precise legal statement of the resolution for independency in the final paragraph lies an enumeration of the outrages of King George III which justify this revolutionary act.

To declare that men and women are not subjects of a monarch but citizens of a republic was both revolutionary and prophetic. To quote part of a prayer for Independence Day "...The founders of this country won liberty for themselves and for us, and lit the torch of freedom for nations then unborn..." It was also rooted in history.

The Founders looked back to the ancient democracy of Athens, the republic of Rome, and to the words of the Hebrew prophet Samuel. In Chapter 8 of the First Book of Samuel we are told that the elders of Israel came to Samuel and asked him make them a king like all the nations. Samuel relayed this request to God, and the Lord said to Samuel:

"Tell them this will be the manner of the king that shall reign over you:

"He will appoint him captains over thousands, and captains over fifties; and will set them to ear his ground, and to reap his harvest.... (1 Sam. 8:12) and

"He will take your daughters to be confectionaries, and to be cooks, and to be bakers." (1 Sam. 8:13) and

"He will take your fields, and your vineyards, and your oliveyards, even the best of them, and give them to his servants. (1 Sam. 8:14) and

"He will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work. (1 Sam. 8:16)

Compare those verses to this indictment of King George III in the Declaration of Independence: "He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance."

The Declaration continues: "He has kept among us, in times of peace standing armies, without the consent of our legislatures."

Now compare that to:

"He will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots. (1 Sam. 8:11) and

"He will appoint him captains over thousands, and captains over fifties; and will set them ... to make his instruments of war, and instruments of his chariots." (1 Sam. 8:12)

The Declaration goes on to indict the King for: Imposing Taxes on us without our Consent."

The Lord, through Samuel, had something to say about that as well"

"He will take the tenth of your seed, and of your vineyards, and give to his officers, and to his servants. (1 Sam. 8:15) and

"He will take the tenth of your sheep: and ye shall be his servants. (1 Sam. 8:17)

The passage from the Old Testament ends: "And ye shall cry out in that day because of your king which ye shall have chosen you; and the Lord will not hear you in that day." It would be many centuries before men and women would live as citizens rather than subjects. That is why we celebrate the Fourth of July.

Friday, June 6, 2014

D-Day Exhibit at Museum of World War II in Natick

Res Publica
D-Day Exhibit at Museum of World War II in Natick
by David Trumbull -- June 6, 2014

On June 6, 1944, 160,000 Allied troops landed along a 50-mile stretch of heavily-fortified French coastline to fight Nazi Germany on the beaches of Normandy, France. General Dwight D. Eisenhower called the operation a crusade in which "we will accept nothing less than full victory." More than 5,000 Ships and 13,000 aircraft supported the D-Day invasion, and by day's end on June 6, the Allies gained a foot- hold in Normandy. The D-Day cost was high -more than 9,000 Allied Soldiers were killed or wounded -- but more than 100,000 Soldiers began the march across Europe to defeat Hitler.

No description, whether in print, spoken word, live theatre, or teleplay, can fully convey what it was like to be a young solder -- perhaps just 19 years old -- weighed down with 75 pounds of gear, sea-sick and soaked from the amphibious landing, crossing a land-mine strewn beach to walk into German gunfire 70 years ago today, in the invasion of Normandy.

Each year, as we commemorate D-Day fewer and fewer of the participants are with us. The youngest D-Day veterans are about 90 years old. In a few more years the battles of World War II will, like the battles of earlier wars, be the subject only of history, not living memory. When that day comes, the closest we'll be able to get to the experience of the Normandy invasion will be by examining the artifacts and primary source documents.

We are fortunate here in Boston that one of the best places in the world to learn about that great conflict is at the Museum of World War II in Natick. Through August 30th the museum is featuring a special 70th Anniversary of D-Day exhibit.

Their D-Day collections are only rivaled, in artifacts, by the Bayeux Museum in Normandy. They have the only known complete original set of the D-Day invasion plans along with thousands of other archival documents, photographs, plans and maps. A substantial part of the holdings are from the original Omaha Beach Museum in Villeneuve, France, which sold its collection to the Natick museum in 1994, after the 50th anniversary of D-Day. All of the artifacts in the special exhibit -- including uniforms, parachutes, weapons, and much more -- were used on the day of the D-Day invasion.

Visiting the museum is a unique experience. In addition to being the most comprehensive collection of original World War II artifacts anywhere in the world, the exhibition -- nearly 7,000 pieces -- integrates the human, political and military stories. It is an intense experience made more so by the fact most artifacts are not behind or under glass. Most can be touched.

Those who cannot remember the past are condemned to repeat it. --- George Santayana (1863 - 1952)