A brief retrospective before jumping into the New Year. I published the following in Counterpunch, Dec. 11 2005. (Went back to look at it, after my eldest son called from St. John -- very near the area where I snorkeled eight years ago -- with news how the coral reef looks today.) It is followed by three OPEDs written by others and published recently in the Tampa Bay Times, Sun Sentinel, and NY Times.
Cathedrals in sea decline: Reef should show how creation is knit together
Alan Farago, published in Counterpunch
I am asked, often, “I know what you are opposed to, but what are you for?”
How is this for an answer? I am for a sustainable creation. I am for Jerusalem.
Oh, I know: Who is against Jerusalem? Who is for chaos?
Yet the question moves with the questioner, toward a familiar direction: compromise, the magnetic north of politics.
In 15 years of watching Florida’s environment — and intensely now, global warming and climate change — even when land purchases, global assurances and hard lines drawn on a map are held as signs of progress, compromise is no match to the threats.
And so it was a few weeks ago I hovered with swim fins and face mask above a patch of coral reef in the Caribbean, and in a mood alternating between determination and resignation, what came to mind first, was Jerusalem.
As recently as a few years ago, this patch reef would have showed how creation is knit together. That is what Jerusalem does, and reefs, too, the most ecologically diverse places on the planet.
But what I found knit nothing. The reef was gray, as though erased, and on closer inspection as if a hammer had blasted what had been elkhorn, staghorn and brain corals to colorless bits.
I knew what I was seeing: It is happening off the coast of Florida.
As I floated over this rubble — a few wrasse and parrot fish like orphans in a gutted cathedral — I thought to myself: This is what trouble looks like.
Not the trouble we endure with work, or to put food on the table, and not even the trouble of life-threatening disease. This trouble speaks of more than we know.
You don’t have to swim over a reef to understand this. You don’t even have to be in the Caribbean — it could be Key West. You don’t even have to know how to swim to understand that, as evidence of sustainable creation disappears, our grasp of what needs defending disappears, too.
Warming oceans are altering critical components of the food chain faster than species can adapt around the changes. There is evidence that rising sea levels are destroying communities at the polar north, altering the normal flow of ocean currents, and fueling more intense, extreme weather events on land and sea. Around the world, coral reefs are in sharp decline.
And within our own bodies, genetic changes from industrial and agricultural pollution are altering the clockspring of life.
Billions of people look to Jerusalem as the single place that represents the whole of creation. But I take Jerusalem to be every place where mankind breathes. I take every coral reef in decline to be a place showing how we have pushed nature beyond the capacity of compensatory systems based on knowledge, ingenuity and government.
So what am I for?
I am for the common wealth of society. I am for our common wealth, the coral reefs, rivers and streams, the Everglades, the clean air and clean water life requires.
I am for fair and equitable assessment of costs to growth, so that the road paved with good intentions and concrete made from limestone is not also a six-lane highway to perdition.
I am for the coral reef and every action that washes one generation after the next, unguided by human hand. I am for Jerusalem that is, like the coral reef, an edge of a place.
Without an edge of a place to penetrate the mystery of creation, we are lost, and Jerusalem is nothing but a city expressing mankind’s most crippling tendencies.
So when people ask what I am for, my answer has to do with space and breathing room, and the urgency of returning economic imperatives and false statistics to the lower rungs of the ladder we climb to reach a useful and productive life, measured not by consumption of valuable possessions but by appreciation, respect and caring for the gifts we have been given as caretakers and stewards for future generations.
Am I an idealist?
I think I am a realist.
Life is a cathedral held together by the fragile, thin layer of atmosphere and unique, so far as we can see, in the entire universe. We don’t need any more evidence.
Near the surface, we can reach out to creation, but only if it is intact.
Tampa Bay Times Editorial, Dec. 28 2012: Threats to waterways and the economy
These days it is rare to hear the word "regulations" in Tallahassee without "job-killing" preceding it.
It is virtual gospel for Gov. Rick Scott and legislative leaders that rules and regulations strangle the economy.
Excessive bureaucracy and red tape do throttle the economy, but, contrary to the mantra of Scott and lawmakers, sensible regulations protect the public, help the economy and spare taxpayers costly future problems.
Water quality illustrates this. Florida's rivers and springs are central to its appeal. Beyond the beauty, wildlife habitat and recreational opportunities they provide, our waterways furnish much of the drinking water supplies necessary for the state's growth.
Yet Florida's waters are in serious trouble, and that scarcely seems a concern in Tallahassee.
A yearlong Orlando Sentinel investigation reported that nearly half of the 22 rivers studied statewide are in decline "because of pollution from lawns, street runoff, wastewater and agriculture and because of shrinking flows caused by drought and the rising demand for water by cities and industries."
Many of the state's springs also are badly polluted or experiencing reduced flows.
The smart — the conservative — approach to such a looming crisis would be to take action to prevent further damage and avoid a costly disaster.
But in the last couple of years Scott and lawmakers have slashed the state's water districts, eliminated state growth laws and cut back on regulations and regulators.
At the same time they all but killed Florida Forever, the land acquisition program started by Gov. Bob Martinez. It enabled the state to protect wilderness areas and water sources for future generations without conflicts with landowners.
History doesn't seem to matter much in Tallahassee. It is as if the widespread pollution and environmental destruction that caused lawmakers to adopt tougher regulations in the 1970s and 1980s never occurred.
Scott and lawmakers ignored the facts and used the recession as an excuse for jettisoning rules that had little to do with the state's economic woes.
Overbuilding and irresponsible lending — not environmental regulations — were largely the cause of the state's housing collapse.
As we've pointed out before, every governor over the last 40 years, regardless of party or political views, has recognized the value of Florida's natural resources and sought to defend them.
Scott — who is not from Florida — has been mostly indifferent. He's taken a few positive steps, advancing Everglades restoration and finally restoring some of the deep cuts he made to the water districts.
But his administration has seemed mostly interested in giving regulated industries what they want.
Scott, with his business background and bottom-line sensibilities, could have focused on showing that effective regulations do not have to be cumbersome or time-consuming.
But his administration and the Legislature look to be more interested in weakening the regulatory system than in reforming it.
Scott and lawmakers should reflect on whether this is the legacy they want to leave.
Future generations are unlikely to look kindly on a political era that was so reckless with Florida's irreplaceable natural assets.
Fort Lauderdale Sun Sentinel Editorial: No denying climate change
December 29, 2012
Earth is growing warmer; the records prove that. Some still doubt human activity has anything to do with it, but it's past time for the rest of us to face reality.
We need, first, good leadership. The United States should provide it, as it has repeatedly promised but failed to do. And Florida should be a leader among the states, because it is among those most threatened with ecological problems and rising sea levels.
Tallahassee should take its cues from South Florida, where local governments have long recognized the dangers associated with climate change. Raising seawall heights, moving drinking-water wellfields farther inland and imposing tougher development regulations for particularly vulnerable areas — ideas once unthinkable — are now part of a regional climate-change plan designed to help local communities address a changing environment.
While the flooding and saltwater intrusion now seen in South Florida occur regularly, far more devastating effects are happening in other parts of the world. According to the Climate Vulnerable Forum, a 20-nation consortium of developing countries, failure to act will result in about 100 million deaths worldwide by 2030 from mega-droughts, floods, disease, crop failure and major water shortages. The forum puts the economic costs of climate change at $1.2 trillion a year now, and says it will double by 2030. Some nations could lose 11 percent of GDP. Oxfam, an anti-poverty group, puts potential agricultural and fishery losses alone at $500 billion a year by 2030.
Skeptics may pooh-pooh the climate forum's report as commissioned by those nations most at risk, which makes them most in need of help. But its findings are consistent with those from the world's most important climate-change organization, the Intergovernmental Panel on Climate Change.
Some skeptics say "many" scientists don't believe in global warming or don't believe it's caused by human activity. But the "many" is actually just a handful. The overwhelming consensus among scientists the world over is that climate change is occurring and human activity plays a major role.
South Floridians may think droughts and wars in faraway places are no threat to them. They are wrong, but in any case, we are dealing with the effects of climate change here at home. Some of our cities have wisely begun to include resources to address the problem in their long-range planning. Their foresight is commendable. It may not be long before every coastal city on earth is doing the same.
"We need to have the will to do things we've never done before and do them quickly," said Richard Grosso, professor of land-use law at Nova Southeastern University, at a regional climate-change conference in Jupiter earlier this month. "We need to elect officials who will not be paralyzed by doubt."
In 2030, most young people who graduated from college this year will turn 40 years old. They will have moved or be moving into positions of power and influence in government and industry. The world's problems will be in their laps.
These are our children. We're already saddling them with a preposterous debt, much to our shame. Do we also want to burden them with the possibly catastrophic effects of climate change, just because we lack the will to act now?
New York Times, December 30, 2012
Let’s Give Up on the Constitution
By LOUIS MICHAEL SEIDMAN
AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.
Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?
Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.
As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?
Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.
No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.
Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored. When Abraham Lincoln issued the Emancipation Proclamation — 150 years ago tomorrow — he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)
In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation. In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.
The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results — by definition — must be wrong.
IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.
This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.
Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.
What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.
The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.
What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can’t kick our constitutional-law addiction, we can soften the habit.
If we acknowledged what should be obvious — that much constitutional language is broad enough to encompass an almost infinitely wide range of positions — we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. Of course, that does not mean that people agree at the ground level. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.
If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.
Louis Michael Seidman, a professor of constitutional law at Georgetown University, is the author of the forthcoming book “On Constitutional Disobedience.”