Ask the author: The imperial presidency and the Supreme Court

This week in North Philly Notes, we re-post Ronald Collins’ interview with Kimberley Fletcher, author of The Collision of Political and Legal Timethat appeared on the SCOTUSBlog on October 18. 

Welcome, Kimberley, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your book.

Question: Can you explain why you selected the title you did?

Fletcher: Thanks to you and SCOTUSblog for this wonderful opportunity to talk about my new book, and for your insightful questions.

I wanted a title that clearly reflected how I understand the growth of executive power and authority in foreign policy-making over developmental time. Many attribute the growth of presidential powers in this area to an aggrandizement of authority by the executive, the acquiescence of Congress and the state’s capacity to act under exigent circumstances. And the role of the courts has simply been to sanction this accumulation of power. However, this perspective overlooks the Supreme Court’s institutional positioning to redefine the scope and breadth of presidential powers vis-à-vis Congress. As political questions are transformed into legal disputes, the court can give meaning to values that have profound political consequences (including regime-building). Courts are therefore primed to institute change.

Question: You are a political scientist. Political scientists like the late C. Herman Pritchett (1907-1995) and others bring their own views into the mix of constitutional law in the area of presidential power. Generally speaking, in what ways might your view and that of your fellow political scientists differ from that of lawyers and law professors?

Fletcher: As a political scientist I seek to move beyond tracing how legal doctrine has changed, to include an evaluation of how various forces (both internal and external to the Supreme Court) have been instrumental in shaping constitutional law over developmental time. Specifically, the focus of my research is the intersection of legal studies (examining how law shapes and is shaped by political, economic and cultural forces) and American political development (focusing on the causes and consequences of major transformative periods in American political history). This intersection of law and politics allows for a clearer understanding of how presidential prerogatives in international affairs have been transformed by the courts over developmental time.

Question: You divide executive power in foreign affairs into two basic categories: the pre-1936 view and the post-1936 view. First, tell us a little bit about the pre-1936 view.

Fletcher: It is well documented that as orthodox republicans, the Framers inherited a well-established fear that the greatest danger to liberty lurked in the unchecked ambitions of the executive. Because of their deeply held fear of unilateral presidential power, the Framers embraced the principle of collective decision-making, the belief that the combined wisdom of legislatures is superior to that of a single executive. And the court’s early jurisprudence (pre-1936) reasserted these principles when it decided, in a variety of cases, the dual nature of collective decision-making between the president and Congress (Bas v. Tingy (1800), Little v. Barreme (1804), and the Prize Cases (1863)). The court left little doubt about the limited scope of the executive’s war power as the lion’s share rested with Congress.

Question: Now, please explain the post-1936 view.

Fletcher: The post-1936 view represents a sharp departure from early constitutional foreign affairs jurisprudence. Nineteenth-century deference to Congress in foreign affairs gave way in the 20th century to a distinct judicial conjecture favoring unilateral executive power in international relations. The court in the 1936 case United States v. Curtiss-Wright Export Corp. instituted a new constitutional order, for the first time establishing plenary powers that were not dependent on congressional delegation. The court reasoned that although the Constitution does not explicitly vest in the president the authority to conduct foreign policy, it gives that authority implicitly through the commander-in-chief clause. Although Justice George Sutherland, majority opinion writer, misappropriated Chief Justice John Marshall’s 1800 sole-organ speech and inflated presidential prerogatives, courts, in a series of cases (Japanese internment, Dames & Moore v. Regan (1981) and Regan v. Wald (1984)), have entrenched this new constitutional order, which in turn has institutionalized presidential ascendency.

Ultimately, the Supreme Court, over developmental time, has delineated the constitutional and political space that has allowed presidents to have the authority and the legislature to have the power to cooperate in a way that meets the practical realities of handling the ever-intensifying realm of international relations.

Question: As a historical matter, how does the Supreme Court’s 7-1 ruling in United States v. Curtiss-Wright Export Corp. in 1936 square with the originalism of Justices Antonin Scalia and Clarence Thomas?

Fletcher: Scalia was a staunch originalist and Thomas comes close to this view. And Justices Neil Gorsuch and Brett Kavanaugh (identified as “stalwart originalists”) also follow in this tradition. Originalists maintain that the Constitution is an enduring document and major changes need to be done through the democratic process.

Question: In several important respects, Presidents Barack Obama, George W. Bush and Bill Clinton followed in the power-aggrandizing footsteps of President Franklin Roosevelt when it came to their authority over wars and foreign affairs. Given that, and the virtual abdication of oversight power by Congress, how realistic is it to think the federal courts have any role to play here?

That is, when one combines the enormous powers conceded to the president in cases such as Curtiss-Wright, United States v. Belmont (1937), United States v. Pink (1942), Dames & Moore v. Regan(1981)Regan v. Wald (1984) and Zivotofsky v. Kerry (2015), it seems that the limits the Supreme Court placed on such powers in a handful of detainee cases (e.g., Hamdan v. Rumsfeld (2006) and Boumediene v. Bush (2008)) are paltry by comparison. What is your sense of that?

Fletcher: The federal courts have a sizeable role to play. I believe it is less about the courts ceding power and more to do with the courts advancing and redefining presidential prerogatives.

Yes, Obama, Bush II and Clinton all followed in the power-aggrandizing footsteps of FDR, but it was the CurtissWright court that provided the legal jurisprudence to successive courts and the executive branch to proceed in this vein. While subsequent courts have further empowered the executive to conduct foreign affairs, it is the Supreme Court that remains institutionally positioned to provide any limits to that power. As I show in chapter six of my book, when Bush II challenged the institutional integrity of the court to review presidential actions, the court took umbrage in the detainee cases. When the court is challenged on its supremacy over constitutional interpretation, it confronts the primary commitments of the majority coalition and (re)establishes its institutional legitimacy. So Hamdan and Boumediene both remind presidents that when they challenge the role of the court, it will push back, and it will redefine the scope of executive authority if needed. These cases also show that when both institutions (executive and legislative) violate constitutional guarantees, the court will not approve of such action. With that said, even though the court rebuked presidential prerogatives, these decisions did not adequately address the core war-making powers of the president.

Question: You discuss executive powers in the context of “pragmatic realities.” You note that “exceptional times demand exceptional measures.” In our post-9/11 terrorist world buffeted by cyber terrorism, are not all times “exceptional” ones? After all, if the terrorist threat is constant, do not “pragmatic realities” dictate “exceptional” latitude when it comes to executive powers in this realm?

Fletcher: That has certainly been the claim: In a post-9/11 terrorist world where the terrorist threat is constant, we should afford exceptional latitude to the executive branch to keep our nation safe. Although this argument has enjoyed widespread support, I would ask at what cost? As I argue in the book, it is the court’s responsibility to determine when heightened national security demands the restriction of rights. And the court strikes this balance by evaluating external factors in line with internal norms (see 1952’s Youngstown Sheet & Tube Co. v. Sawyer and the detainee cases). The executive’s claims to unrestrained power and authority during exceptional times are then bounded by the court’s determination of those claims.

Fletcher.Kimberley

Kimberley Fletcher

Question: In a recent essay in the New York Review of Books, Jonathan Stevenson wrote: “Over the past forty-five years, the effective scope of the [War Powers Act] has remained more or less the same. Hawks don’t want to press federal courts to clarify how widely it applies for fear of a ruling that would restrict executive power. Doves are afraid the courts will expand it. The courts themselves are wary, too. They tend to regard disputes between the White House and Congress about the applicability of the act as political questions inappropriate for judicial review.” If so, where does this leave Article III courts and especially the Supreme Court?

Fletcher: First, speaking to the War Powers Resolution of 1973. This act represented an abject surrender of the war power. Ultimately, Congress cannot delegate to another branch the constitutional power to decide war. Statutes, such as WPR, that intend to limit executive authority by requiring legislative oversight have been interpreted in ways that permit substantial presidential autonomy. For example, Clinton was quite aggressive in his use of military force without congressional approval by relying on executive orders and loopholes of the WPR – skirting around the strict reporting requirements by filing separate reports to Congress that regenerated the “sixty-to-ninety-day clock.”

Second, when courts invoke the political question doctrine they abdicate their constitutional obligation to review cases and controversies. That leaves us waiting for the issue to be resolved by the political branches, and, as we know, Congress is unlikely to challenge the executive directly. And, even when legislative members have brought a suit (1979’s Goldwater v. Carter and 2002’s Kucinich v. Bush) the courts have sidestepped the issue, punting it back to the political branches. Consequently, the executive branch continues to circumvent the democratic process as it forges ahead with its foreign policy agenda.

Question: 1984’s Regan v. Wald, concerning the Treasury regulation that barred travel to Cuba, was a 5-4 decision. In his dissent, Justice Harry Blackmun made a strong case that Congress intended to bar the president from expanding the exercise of emergency authority under Section 5(b) of the Trading With the Enemy Act.

Was this a case of the Supreme Court exercising its supremacy in matters of presidential power in foreign affairs, or was it an example of the court yielding to presidential supremacy?

Fletcher: As I discuss in my book (chapter five), this is a clear case in which the court was flexing its institutional muscle.

Dames (1981) and Regan (1984) were decided when the U.S. was involved in the Cold War and the political pressures placed on the administration necessitated a number of wide-ranging policies. Under these circumstances, the court contended that the executive had a significant role in the conduct of the nation’s foreign policy as the president attempted to contain the spread of communism. The court in both cases, re-engineering authority, clearly asserted its prowess in settling which branch and by what measure foreign policy was conducted.

By re-examining Regan in line with Dames, I show the extent to which the court deliberately shifted authority from Congress to the president by finding exceptions to justify and sanction the executive’s broad discretionary authority. For example, the Regan court determined that congressional silence and practice implicitly delegated to the executive the emergency authority to restrict travel unilaterally.

Question: The ability of federal courts to review the president’s powers in the domain of international affairs depends on the existence of a concrete case or controversy under Article III. Absent some concrete injury to a particular person or class of persons, who would have standing to contest the scope of presidential power? See Campbell v. Clinton (D.C. Cir., 2000) (holding that 31 House members lacked standing to contest Clinton’s conduct of the Kosovo war). How much do Article III constraints on litigants limit the Supreme Court’s ability to check presidential power?

Fletcher: To your first question. Courts have noted that to assert an institutional injury the chamber, as an institution (and not a few disgruntled legislators), must show it has been injured. The courts have a mixed history on this issue. For example, in 1939’s Coleman v. Miller the court granted standing to 21 Kansas senators because the court found that the senators represented the Senate’s institutional position. But in other instances, 2000’s Campbell v. Clinton and 2002’s Kucinich, courts have dismissed cases because of a lack of standing; a few legislators cannot represent the entire chamber. It is my sense that over time these cases have become more about challenging executive action as an institution, which in turn would require the congressional chamber to be represented in the case as a collective body and not as a few legislators.

To your second question. It is less about whether Article III constrains the court and more a question of the court claiming that Article III constrains it. By that I mean the court can conveniently determine when Article III constrains its decision-making. It is my view that in many of these cases the court could decide on the merits. A clear instance would be whether the president has the authority to unilaterally terminate a treaty (Kucinich 2002).

CollisionofPoliticalandLegalTime.jpgQuestion: You quote Norman Dorsen for the proposition that “national security has been a graveyard for civil liberties for much of our recent history.” It seems that the court’s 2010 ruling in Holder v. Humanitarian Law Project (upholding a material-support-to-foreign-terrorist-organizations restriction in context of political speech) confirms that. Once any administration invokes the “national security” mantra, isn’t that really the end of the matter when it comes to any meaningful check on that power by way of judicial review?

Fletcher: National security concerns have been expanded to include just about anything, from immigrants, refugees and separating children from migrant parents, to importing steel and aluminum. And once national security is invoked it appears as though that it is the end of the matter, as the administration cannot be challenged. But this rhetoric is a public and legal justification for policies that appear, at times, to have little association between the issue presented and viable threats to the nation. So, the courts can play an important role to determine when these claims are valid. In fact, the U.S. Freedom of Information Act permits courts to review whether national security information is properly exempt from disclosure, but it requires an active judiciary to check unjustified national security secrecy. The Supreme Court can thereby strike a necessary balance and serve as a meaningful check just as I show in several chapters of my book.

I would also add that it is incumbent upon us all — general public, media, Congress and elites — to keep our government accountable when it invokes the national security mantra.

Question: Which of the justices in the current five-member conservative bloc do you think might vote to rein in executive power in the foreign affairs area?

Fletcher: I don’t believe the court will really rein in executive power in foreign affairs unless the court’s institutional authority to review such actions is called into question (see detainee cases). Moreover, as recently as 2015 the court in Zivotofsky v. Kerry entertained no direct challenge to the executive’s claim of presidential prerogatives. Yes, the court appeared to have jettisoned the sole-organ doctrine, but the court in a very significant way, in a number of passages, continued to advance plenary and exclusive presidential powers.

In terms of the conservative bloc, Kavanaugh’s confirmation places him alongside Alito and Gorsuch, with Thomas farthest to the right and Chief Justice John Roberts situated more toward the middle. With this alignment it is hard to imagine this bloc limiting the executive’s authority, but there is always room for renegotiating the extent of presidential prerogatives statutorily. Thomas, for example, remains steadfast in supporting presidential prerogatives: The court should not “second-guess” the decisions of the executive branch (Hamdi (2004)). And Kavanaugh’s paper trail suggests he is not only sympathetic to the office of the president (in matters involving civil suits, criminal investigations or criminal prosecutions), but also that he has a robust view of executive power in the area of national security. For example, Kavanaugh went out of his way in Klayman v. Obama to argue that the metadata-collection program did not necessitate warrants because the executive had ordered the program to combat terrorism.

However, if assessments are correct and Roberts does move to the left (as we saw with his vote to uphold the constitutionality of the Affordable Care Act), then perhaps he might be the one justice to sway the balance. But that is hard to imagine given Roberts’ 2008 dissenting opinion in Boumediene. Here Roberts stated the government had devised a deliberate and careful system of procedures for those detained in the ongoing military conflict.

Question: Executive power extends beyond the particular actions of a sitting president. For example, to an unprecedented degree the Trump administration has left many foreign-policy posts unfilled. The result has been to shrink the State Department. In an interview aired on Fox News, President Donald Trump stated: “Let me tell you, the one that matters is me. … I’m the only one that matters, because when it comes to it, that’s what the policy is going to be. You’ve seen that, you’ve seen it strongly.” Assuming, hypothetically, that practice of leaving vacancies unfilled continued for whatever reasons, what role, if any, does that leave the Supreme Court in shaping the extent of presidential power?

Fletcher: Great question. When State Department positions are not filled we are potentially left with incoherent policies, or policies shaped by an underrepresentation of career foreign service officers. Consequently, we are undermining U.S. diplomacy and thus jeopardizing U.S. leadership globally. Although the lack of appointments may not be disastrous, as positions are filled in an acting capacity, these acting positions are not fully empowered and cannot remain indefinitely.

Presidents, at the end of the day, have largely been determining American foreign policy (with or without State Department help), and the court has aided in shaping the extent of presidential power in this area. This is all too evident with the 2015 Zivotofsky decision: The court determined in that case that the president has the exclusive power to recognize (or not recognize) foreign nations, so the legislature may not require the State Department to indicate in passports that Jerusalem is part of Israel.

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December 17, 2014

This week in North Philly Notes, Yolanda Prieto, author of The Cubans of Union City discusses President Obama’s landmark Cuban policy change, while reflecting on her own experiences as a Cuban American.

As a Cuban American who favors the normalization of relations between the United States and Cuba, I choked up with emotion when watching President Obama’s historic television address on December 17, 2014 announcing that he was changing the policy of isolation towards Cuba. After all, Obama explained, more than 50 years of acrimony between the two countries had not accomplished anything. Instead, engagement could lead to a more fruitful relationship, and it could possibly bring economic improvements and more freedoms to the Cuban people. Americans could also travel to Cuba under a broader range of categories, which could generate more contact and understanding between the two countries. These changes would happen even though the economic embargo, imposed by the United States on Cuba in 1962, would remain in place. To lift the embargo, Congress would have to repeal the Helms-Burton Act of 1996, which strengthened and extended the existing embargo on the island. Regarding the embargo, Obama urged lawmakers in his speech to lift it because the law was anachronistic and it no longer served any real purpose.

At exactly the same time, President Raul Castro made the same announcement on Cuban television. In both countries, the news was received with great surprise. The road ahead would be difficult, but these steps marked a historic beginning.

Cubans of Union CityIn Cuba, people were elated. Praise for President Barack Obama abounded, and American flags were displayed on balconies and bike taxis. In Miami, where most Cubans outside of Cuba reside, the reaction was mixed. Many Cubans approved of President Obama’s plans, but many others disapproved. Relations with Cuba, they think, would only serve to enrich the coffers of the Cuban government in Havana.  But the majority of Miami Cubans favor normalization of relations. A survey conducted by Bendixen and Armandi International in March, 2015 revealed that 51 percent of Cuban Americans support the efforts to normalize relations with Cuba, while 49 percent do not. Approval for the politics of normalization is growing among Cubans who do not live in Miami; 69 percent of Cuban Americans who live outside of Miami support normalization.

Although approval is high among younger generations of Cuban Americans, it is declining among the older population. Disapproval is also vociferous among Cuban American Congress members. In Cuba, some dissidents oppose normalization while others welcome it. It is also possible that some in the Cuban government do not agree, especially those hard-liners that see any contact with the United States as detrimental to Cuba.

What led to this change in the American position toward Cuba? According to William Leogrande and Peter Kornbluh’s book Back Channel to Cuba, there has been ongoing, secret, often surprising, dialogue between Washington and Havana. Along with the invasions, covert operations, and assassination plots, there have been efforts at rapprochement and reconciliation. However, most of these efforts had fallen through the cracks. Discussions between the two governments have been largely limited to specific problems, mainly in times of crisis, such as migration talks and more recently, talks about drug trafficking.

Recently, there were rumors that President Obama might tackle the U.S.-Cuba relations issue during his second term. Many believed that the incarceration of Alan Gross, the American contractor employed by the U.S. Agency for International Development (USAID), was the main obstacle to a change in policy. He was arrested in Cuba in 2009 and then prosecuted in 2011 for bringing sophisticated telecommunications equipment into the island against Cuban law.  At the same time, there were three Cubans jailed in the United States. They were part of the Cuban Five, a group of Cuban nationals convicted in Miami in 2001 for conspiring to commit espionage and for conspiring to commit murder. Two had already been released.

The December 17. 2014 announcements were preceded by 18 months of secret talks between U.S. and Cuban officials.  They met in Canada and in the Vatican. Canadians helped, as did Pope Francis, who wrote letters to Obama and Castro urging them to work for an end to the impasse. Finally, on December 17, Cuba and the United States announced that they had agreed to exchange prisoners: Cuba would free Alan Gross and a high-level Cuban working for the Americans serving time in Cuba for espionage. The United States would in turn free the three jailed Cubans. Additionally, Cuba would free 53 Cuban political prisoners.

Since December 17, 2014 there have been talks between U.S. and Cuban officials to work out the details of normalization of diplomatic relations. There have been two meetings in Havana and two in Washington, with an additional one scheduled for May 21 in Washington. One topic of concern has been the reopening of the embassies. Simultaneously, a flurry of activity has taken place. Trips and delegations of politicians, businessmen, artists, have arrived in Cuba looking for their space in this new climate. Representative Nancy Pelosi went down with a delegation early this year. Andrew Cuomo, governor of New York, visited the island in April accompanied by business leaders, including some executives from pharmaceutical companies. A number of officials, from government to private industry are urging that the embargo be lifted to completely normalize relations. Other major changes have taken place or are in the works. For example, President Obama recommended that Cuba be removed from the list of countries that sponsor terrorism. There have been advances in the area of telecommunications, banking, trade, U.S. exports to the private sector in Cuba, and travel, both by air and sea.

Among recent visitors was French President Francois Hollande who met with Raul and Fidel Castro.  He also urged the United States Congress to lift the embargo.  More recently, Raul Castro met with Pope Francis at the Vatican. The reason for his visit was to thank the Pope for his efforts to promote rapprochement between Cuba and the United States and to prepare the way for the upcoming visit of the Pontiff to the island in September, 2015.

Who benefits from normalization? First and foremost, the Cuban people. One expectation is the increasing economic development of Cuba through investment and trade. Hopefully, ordinary Cubans will gain through an improvement of the economic situation, both in terms of greater possibilities for consumption and possibly the creation of jobs, especially for the poor, who lack material resources due to meager salaries and lack of money through remittances from relatives abroad. The very poor and non-whites are often the ones who do not have family in the United States. There is also a very positive effect on Latin American regional relations. Obama probably had that in mind all along, as the Summit of the Americas in Panama revealed. Most Latin American countries wanted the return of Cuba to the Latin American family. The United States had opposed that. The meetings in Panama showed how the change in the U.S. position positively altered the climate among all nations.

Finally, these changes could be very beneficial for the Catholic Church, other religious groups, and other members of Cuba’s civil society. The Catholic Church already participated in talks with the government in 2010 to release political prisoners. Before and after those talks, the Catholic Church and the government have maintained a constructive dialogue. In the words of Havana’s Cardinal Jaime Ortega, “for the church, the improvement of bilateral relations will be very beneficial… It will be easier to obtain help that we receive from other world churches to do our charity work in Cuba. The dialogue between church and state will not be broken, it will continue.”

Normalization of diplomatic relations between Cuba and the United States will not be an easy journey. For one thing, the U.S. embargo of Cuba presents legal obstacles to many of the changes that the two governments want to implement. But the process has already started, and it seems that there is no way back.

What happens when the protests end?

In this blog entry, Harold McDougall, author of Black Baltimore, looks at growing civic infrastructure from family and neighborhood connections to show the “powers that be” that little people matter

Recent events in Baltimore are a reminder of the need to build “civic infrastructure” in inner-city communities like Sandtown, the neighborhood in which Freddie Gray lived, a neighborhood I studied closely when writing Black Baltimore, more than twenty years ago.

Sandtown then was home to many community-based, self-help efforts that provided examples of what participatory democracy, on a small scale, should look like. News reports from Sandtown in the wake of Freddie Gray’s death show they are still there—Rev. A.C. Vaughn’s Sharon Baptist Church, the New Song Community school, the Sandtown-Winchester Improvement Association, ”helicopter” parents and grandparents, trying to guide their kids through the maze.

black baltimoreI celebrated the indigenous social capital of these small-scale efforts in the book, calling them “base communities” because they reminded me of the Christian study circles organized by liberation theologists in Latin America. Groups of no more than twenty, seminar-size, where people could connect, reason together, figure things out and take action.

Friends and colleagues challenged my idea, arguing that while intimate and powerful, these small groups were not scaled to solve the problems they could see. Employment? Education? Police misconduct? Environmental damage? How could a group of twenty people respond to such large-scale issues?

So I went back to the drawing board, trying to figure out how to take base communities to a scale large enough so they could impact the issues people in neighborhoods like Sandtown face without sacrificing the intimacy and trust that made them so powerful, so important, so precious.

It was quite an undertaking, assisted by serendipity and caring people as much as by scholarship and hard study. It’s taken a long time.

The process started at a National Civic League annual meeting I attended, where former U.S. Senator Bill Bradley gave a speech comparing American society to a three-legged stool. There is a government leg, a business leg, and a community leg, he said. Bradley got the audience’s attention by declaring that the government and business legs are very long while the community leg is very short, making the stool—and the society—unstable.

How can community be lengthened, strengthened, so that it can balance business and government? Episodic flare-ups, through demonstrations, protests and other forms of mobilization, are not enough. Once grievances have been addressed, or the protesters silenced or co-opted, activity tends to subside. Civil society needs an ongoing civic infrastructure if it is to impact government beyond periodic elections, and business beyond individual consumer choice.

But how to build that infrastructure, how to knit those base communities together?

Then I met Don Anderson, a lawyer and social activist who was also an African-American descendant of Thomas Jefferson. He had come across some of his ancestor’s writing on “Citizen’s Assemblies.” The assemblies were to be sized to a Congressional district, and would select their Member through a series of caucuses. The Assembly’s most intriguing aspect, however, was its structure, and its potential to do a lot more than elect a Member of Congress.

The building block of Jefferson’s assembly was a neighborhood council of seven families, comprised of one representative from each family. Each council in turn selects its own representative, and these seven people meet as a “conference” representing seven councils (49 families). Finally, each conference sends a representative to an assembly representing all the conferences in the congressional district. The assembly conveys information—and instructions—from the constituent base to the member of Congress. (The model’s democracy was apparently a bit too direct for the Founding Fathers, and it never left the drawing board.)

This was what I was looking for.

Today, Sandtown numbers approximately 9,000 people. A Sandtown Citizen’s Assembly could aggregate families directly, and empower the people of the neighborhood. Such an Assembly could hold local government more closely accountable—schools, the police, elected officials—not from the distance of the voting booth but up close and personal. The Assembly could also perform some functions parallel to government, such as community mediation. (I called this the “politics of parallelism” in Black Baltimore)

The Sandtown Citizen’s Assembly could also check businesses and banks engaging in exploitative or high-handed practices. Past examples include the boycotts and selective buying campaigns of the civil rights movement, and labor’s boycotts and public shaming campaigns. Co-ops such as those Gar Alperovitz has described [http://democracycollaborative.org/] could round out the Assembly portfolio, creating “social” businesses, micro-enterprises, and other “off-the-grid” sources of income.

Protests emerging from the hassles people in neighborhoods like Sandtown face every day have erupted all across the country.  These protests are, at bottom, about a political and economic system that just doesn’t care about little people until, like Lilliputians, they get organized.

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