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Civil Rights & Liberties at Risk in 21st Century America and in New York State

By Michael Diederich posted 01-22-2022 04:46 PM

  

Civil Rights & Liberties at Risk in 21st Century America and in New York State 

         By Mike Diederich, Jr.   

I have been on the NYSBA Civil Rights Committee for a few years now, but have not posted on its Blog.  This is despite having written several draft pieces that I intended to post. Well, since perfect is the enemy of the good (Voltaire:  “Il meglio è nemico del bene"), I have decided to post some of what I have written, even though perhaps not quite the best finished product.  I solicit your comments (by email or phone) to help improve what I post into something that might be suitable for publication in, say, the NYSBA Journal. 

As you know from hearing me talk during our online committee meetings, the subject that most concerns me in recent years has been democracy in America and in New York State.  As a civil rights law practitioner, I view many of the civil rights and civil liberties problems we see in our country today as  a product of our collective neglect of core American principles—the foundations of America beginning with the Declaration of Independence.   

Declaration of Independence and Constitution’s Preamble
as Foundational to Americans’ Civil Rights and Liberty

The Declaration, as America's foundational document, declares “Life, Liberty and the pursuit of Happiness” to be among the “unalienable rights” that governments are instituted to secure with the “consent of the governed.” The government eventually “instituted among Men” to secure such rights was the United States of America.  Its foundational instrument is the Constitution, with its Preamble declaring that “We the People” adopted the Constitution “in Order to create a unified, tranquil and secure nation and, for its people, to “establish Justice, … promote the general Welfare, and secure the Blessings of Liberty….”  

It seems to me that this Preamble, liberally construed in its generality, provides all the protections that the citizenry needed, and all that it was eventually guaranteed in the specificity of the Constitution's amendments--the Bill of Rights. 

James Madison, for example, feared that trying to spell out all of American’s rights in a separate Bill of Rights might end up being self-defeating as inherently limiting.[1]  Arguably history has proven him at least partially correct.  For example, opponents of contraceptives, gay marriage, abortion and other privacy rights and “right to be left alone”[2] argue that nothing in the Bill of Rights expressly protects such individual choice—that these are not “rights” contained anywhere in the Bill of Rights, viewing such as limiting.  However, both the Declaration and the Preamble regard the blessings of “liberty” as an unalienable right, and therefore why should those foundational documents not control, and ensure the guarantee of individual liberty?

The worst of our nation's Supreme Court jurisprudence ignored liberty and protected property instead (a Bill of Rights guaranteed interest not found in the Declaration or Preamble). For example, the Dred Scott[3] decision protected property, and certainly not liberty. Plessey v. Ferguson’s[4] “separate but equal” doctrine likewise ignored liberty, and the list goes on and on. It seems to me that almost every landmark “civil rights” case was groundbreaking and revolutionary because it re-interpreted a Bill of Rights provision in favor of the liberty that the Founding Fathers sought to protect in 1776 (albeit using contemporary thinking and norms).  This includes the privacy cases such as Roe v. Wade[5] mentioned above, the First Amendment cases regarding free speech and religious liberty (though perhaps not the religiously orthodox children’s liberty), the Fourth Amendment cases involving the liberty to resist the power of police and prosecutors, the Eighth Amendment liberty not to suffer cruel punishment and (although I think the court erred) the Second Amendment liberty to possess an assault weapon, machine gun, tank or nuclear weapon (well, not quite so much liberty yet—the New York City case pending before the Supreme Court--NYS Rifle & Pistol Assn v Bruen-- has not yet been decided).

Democracy issues

Our Civil Rights Committee was formed to focus on individual rights, particularly vis a vis the government. As an employment law civil rights attorney who has also served in the military (including in Iraq and Afghanistan) and also run for public office more than once, the protection of individual rights is a subject dear to my heart.  It is why, when former president Trump was talking about militarizing Portland, Oregon, to oppose citizen protests, when such was clearly a city and state- responsibility, I wrote a paper explaining why the Guarantee Clause barred Pres. Trump’s unilateral intervention.[6] My interest in opposing unlawful discrimination led me to write an article suggesting how the dormant Commerce Clause might be used as a tool to oppose exclusionary land use practices.[7]

Having lived in Europe, traveled around the world (including in 2 combat zones) and representing hundreds of clients over the years, my interest in government, democracy and the rule of law has been heighted with the realization that our nation is no longer the exemplar for democracy and freedom that it once was, but rather, our own democracy and freedom are at risk.  This has been in the back of my mind with perhaps every draft or published article I have written recently.  I believe (or at least hope) that most Americans still share core values such as fairness, respect for others, the values of diversity and equal protection of the law, truth and the rule of law.

Civil Liberties Issues for Future Posts 

With the above in mind, what I intend to do in the forthcoming days and onward is to post on this Blog some things I have drafted, but perhaps not finalized.  I hope to provoke thought, on difficult issues, but not to offend anyone and always keep the discussion civil and as nonpartisan as possible (other than to always reject Trumpism, which I view as the exact opposite of Jeffersonian democracy).  

After I post an article, I hope I will receive via email (rather than a blog comment) your suggested edits and constructive criticism, which will allow me to edit the Post as appropriate (if editing is possible).  Here are some topics I hope to address in my future Committee on Civil Rights Blog posts. 

  1. Covid Mandates and the Law from an Employment Law perspective.

  2. Advocating for the Covid-vaccine Hesitant –Ethical Considerations.

  3. Exclusionary Zoning—A Disease that the Dormant Commerce Clause might help Cure—an update to my prior article.

  4. The Government’s Refusal to Protect Hasidic Children’s Right to an Adequate Secular Education.
      (Basically arguing that all children have the right to an adequate education, even if their parents prefer they remain in a religious cocoon or intellectual cage. Our democracy need an informed, educated citizenry, not a bunch of competing and highly organized religious factions.)

  1. Transgender Participation in Athletics— Have Transgender Advocates taken the Bigots’ Bait?
     (Basically arguing that as a civil rights cause, arguing for transgender equality in serious and elite-level athletic competition is counterproductive, as it defies both existing science and American’s common sense [even if incorrect].  In our divided nation, arguing for participation in elite-level competition is simply a bridge too far, and such advocacy will politically hurt liberal efforts to advance other civil rights protections.)

  1. Are the Federal Courts for the People, or Only for the Powerful Special Interests?

  2. In Law and Governance, how does the Reptilian Mind trump Democratic Reason? 
      (“Implicit bias” has its roots in evolutionary psychology, and recognizing how the mind can be influenced can help safeguard both the law and our democracy.)     

Again, after I Post an article, please telephone me or email me with any useful comments or constructive criticism, so that I can further edit the Post into a better piece

 Mike Diederich, Jr., Stony Point, NY   Jan. 22, 2022

The articles I post on this Blog should be considered as a “draft,” as it has not been peer-reviewed nor closely re-examined by the author, who seeks colleagues’ input as to the tentative content contained therein.  The author is solely responsible for this blog submission.  It does not represent the position of the New York State Bar Association or this Committee.

[1] See, e.g., Lesley Kennedy, Before Drafting the Bill of Rights, James Madison Argued the Constitution Was Fine Without It, History.com (Sept. 9, 2019),

[2] Privacy, Cornell Law School Encyclopedia, https://www.law.cornell.edu/wex/privacy.

[3] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

[4] Plessy v. Ferguson, 163 U.S. 537 (1896).

[5] Roe v. Wade, 410 U.S. 113 (1973).

[6] Michael Diederich, Jr., The President, the States and Policing American Cities, NYSBA Journal (Sept./Oct. 2020), pp 26-28, https://nysba.org/the-president-the-states-and-policing-american-cities/.

[7] Michael Diederich, Jr., How the Dormant Commerce Clause Can Fight Zoning Discrimination, NYSBA Journal (Sept./Oct. 2021), https://nysba.org/how-the-dormant-commerce-clause-can-fight-zoning-discrimination/.

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