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January 21, 1977 - Image 4

Resource type:
Michigan Daily, 1977-01-21

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1MirCitan Pailu
Eighty-Seven Years of Editorial Freedom
420 Maynard St., Ann Arbor, MI 48109
Friday, January 21, 1977 News Phone: 764-0552
Edited and managed by students at the University of Michigan
A belated aroval of due
process and D eql j s ie
process an~~ ' ajs e

THE DAILY applauds the Indiana
state legislature for its recent
ratification of the Equal Rights
Amendmeit (ERA). We also wonder
what took them so long. The Amend-
ment is so clearly right and neces-
sary that any legislative hesitation
is puzzling. Who could vote against
equal. justice and due process?
Oddly enough, some legislators are
still not voting for it, and their rea-
sons are specious. Pampered maniacs
like Phyllis Schafly aside, opponents
b'ase their objections on one premise:
that the ERA would deprive women
of legitimate legal protection against
rape, murder, torture, dying in com-
bat, or lifting excessively heavy loads.
But present restrictive legislation
seems not to be functional; and in
any case, the same protections should
be extended to men.
TITH INDIANA'S' ratification, the
approval of only three more
states is required to make ERA the
law of the land. ERAmerica, a Wash-

ington-based coalition of organiza-
tions which support the Amendment,
has targeted six key states which are
most likely to ratify this year: Flori-
da, Illinois, Missouri, Nevada, North
Carolina, and Oklahoma. Residents of
these states, or folks who have fanli-
lies living in these states, should fol-
low Jimmy and Rosalyn Carters' ex-
ample and bring pressure to bear
through letters or phone calls. Inci-
dentally, Michigan residents should
write their state legislators insisting
that rescinding our state's ratifica-
tion is out of the question. Rescind-
ing is probably illegal, but could cre-
ate court hassles that might j eapor-
dize final ratification.
ERAmerica can put you in touch
with lobbying groups around the
country (1525 M Street NW, Suite 602,
Washington, D.C. 20005). The Ann
Arbor NOW chapter welcomes volun-
teers and contributions (mark checks
"ERA"), and is now in the process
of selecting a sister state for lobby-
ing (995-5494).

WASHINGTON (AP) - Here is a
text of President Carter's inaugural ad-
FOR MYSELF and our nation, I want
to thank my predecessor for all he h'
has done to heal our -land.
In this outward and physical cre
mony we attest once again to the in
ner and spiritual strength of our na
As my high school teacher, Miss Ju-
lia Coleman, used to say, "We must
adjust to changing times and still hold
to unchanging principles."
HERE BEFORE ME is the Bible
used in the inauguration of our first
President in 1789, and I have just taken
my own oath of office on the Bible my
mother gave me a few years ago, open-
ed to a timeless admonition from the
ancient prophet Micah:
"He hath showed thee, o man, what
is good; and what doth the Lord re-
quire of thee, but to do justly, and to
love mercy, and to walk humbly with
thy God." Micah 6:8
This inauguration ceremony marks a
new beginning, a new dedication with-
in our government, and a new spirit
among us all. A President may sense
and proclaim that new spirit, but only
a people can provide it.
Two centuries ago our nation's birth
was a milestone in the long quest for
freedom, but the bold and brilliant dream=
which excited the founder of our nation
still awaits its consummation. I have N
no new dream to set forth today, but .
rather urge a fresh faith in the old
drea'm. JIMM
OURS WAS THE FIRST society open- Chief<
ly to define itself in terms of both
spirituality and of human liberty. It is magnifice
that unique self-definition which has giv- prize was
en us an exceptional appeal - but is But w
also imposes on us a special obliga- bered glo
tion - to take on those moral duties We rejec
which, when assumed, seem invariably mediocrit
to be in our own best interests. for any p
You have given me a great respon- Our g
sibility - to stay close to you, to be time bet
worthy of you, and to exemplify wlht sionate.
you are. Let us create together a new We ha
national spirit of unity and trust. Your gree ofp
strength can compensate for my weak- now strugl
ness, and your wisdom can help to opportnit
minimize my mistakes, rights mu
Let us learn together and laugh to- our natur
gether and work together and pray to- erful mus
gether, confident that in the end we will human di
triumph together in the right. WE H
The American dream endures. We is not ne
must once again have full faith in our our great
country - and in one another. I be- its, andt
lieve America can be better. We can all questi
be stronger than before, cannot afl
LET OUR RECENT mistakes bring we afford
a resurgent commitment to the basic the futur
principles of our nation, for we know individual
that if we despise our own government good, we
we have no future. We recall in special Our na
times when we have stood briefly, but if it is si

ina a ura

We will be ever vigilant and never
vulnerable, and we will fight our wars
against poverty, ignorance and injus-
tice, for those are the enemies against
which our forces can be honorably mar-
WE ARE A PROUD idealistic na-
tion, but let no one confuse our idealism
with weakness.
Because we are free we can never
be indifferent to the fate of freedom
elsewhere. Our moral sense dictates a
clearcut preference for those societies
which share with us an abiding respect
for individual human rights. We do not
seek to intimidate, but it is clear that
a world which others can dominate with
impunity would be inhospitable to de-
cency and a threat to the well-being
of all people.
The world is still engaged in a mas-
sive armaments race designed to insure
continuing equivalent strength among po-
tential adversaries. We pledge persever-
ance and wisdom in our efforts to limit
the world's armaments to those neces-
sary for each nation's own domestic
safety. We will move this year a step
toward our ultimate goal - the elim-
ination of all nuclear weapons from this
We urge all other people to join us,
for success can mean life instead of
United States, there is evident a seri-
ous and purposeful rekindling of confi-
dence, and I join in the hope that when
my time as your President has ended,
people might say this about our na-
That we had remembered the words
of Micah and renewed our search for
humility, mercy and justice;
That we had torn down the barriers
that separated those of different race
and region and religion, and-where there
had been mistrust, built unity, with a
respect for diversity;
That we had found productive work
for those able to perform it;
THAT WE HAD strengthened the
American family, which is the basis of
our society;
That we had ensured respect for the
law, and equal treatment under the law,
for the weak and the powerful, the rich
and the poor;
And that we had enabled our peo-
ple to be proud of 'their own govern-
ment once again.
I would hope that the nations of the
*world might say that we had built a
lasting peace, based not on weapons
of war but on international policies
which reflect our own most precious
These are not just my goals, but
our common hopes. And they will not
be my accomplishments, but the affirma-
tion of our nation's continuing moral
strength and our belief in an undimin-
ished, ever-expanding American dream.

Y CARTER takes the oath of office 'as the 39th president of the
d States at the Capitol yesterday as his wife Rosalynn looks on.

Bell brings a cloud of
doom to new a dministration

C'ONSIDER THIS: the new attorney-
A general of the United States -
the person chosen to lead the na-
tion's system of justice, to ensure
that American laws are enforced
with fairness and toughness and dig-
nity - is a man who has consistent-
ly ignored such ideals throughout his
public and private life.
The Senate Judiciary Committee
Wednesday approved Jimmy Carter's
nomination of Georgian Griffin Bell,
and with that 10-3 vote, let a cloud
of gloom seep into this hopeful new
We believe in the Senate's duty
to take part in this business of form-
ing a new executive branch. We dis-
agreed with the Senate Intelligence
Committee's opposition to Ted Soren-
sen's nomination to the CIA director-
ship, but we affirmed its obligation
to oppose him if it so felt. Now we
have seen a powerful committee shirk
that obligation, making a terrible
Griffin Bell, as a federal judge,
impeded court-ordered desegregation
of Georgia schools. He endorsed Rich-
ard Nixon's nomination of G. Harrold
Carswell to the U.S. Supreme Court
- a nomination which went down
to ignominious defeat because Cars-
well was a hard-line bigot and a
mediocre judge at that.
GRIFFIN BELL, as a private citi-
zen, has belonged for years to
several private Atlanta clubs which
exclude blacks and Jews. After much
agonizing, Bell said he'd quit the
clubs but said he'd be damned if the
Senate was going to make him say
he wasn't going to join them again
when he retired from the Justice
Bell says he was a voice of mod-
eration in the South in the early
PIpN'T t1)J2

Sixties, when others were screaming
for black blood. For the sort of ac-
commodating he did in that period,
we recognize his right to a clearer
conscience than most southerners can
claim. But how can Jimmy Carter
say such a man should lead the na-
tional struggle for equality under the
law? How can he set out such a man
to be a model of prosecuting integ-
The exclusive clubs to which Bell
belongs are perhaps even more in-
dicative of his nature. Maybe a man
could justify his appeasement of rac-
ists by claiming to be a pacifier of
dangerous conflict, while maintaining
a private commitment to equality.
But this man can make no such
claim. While we acknowledge the'
right of such private clubs to txist,
we condemn their exclusive practices,
and are astounded that Carter would
name one of their members to head
the Justice Department. What sort of
justice is this?
Finally, we feel personal anger
over the cop-out of our own Sena-
tor Donald Riegle, whom we support-
ed throughout his 1976 campaign.
Riegle, a new member of the Judici-
ary Committee, voted "present" when
the roll was called. He said the nom-
ination was flawed, but he wouldn't
vote against it - this from a man
who won nomination and election
largely on the strength of black votes.
News: Gwen Barr, Patty Ducker, Robb
Holmes, Lani Jordan, Janet Kern,
George Lobsenz; Rob Meachum,
Bob Rosenbaum, Liz Slowik, Mor-
garet Yao
Editorial Page: Marnie Heyn, Stephen
Kursman, Ken Parsigion
Arts Page:-Lois Josimovich, Steve Pick-
Photo Technician: Andy Freeberg

Justice Warren Burger (left)
ntly, united; in those times no
beyond our grasp.
e 'cannot dwell upon remem-
ry. We cannot afford to drift.
t the prospect of failure or
y or an inferior quality of life
overnment must at the same
both competent and compas-
ve already found a high de-
personal liberty, and we are
ggling to enhance equality of
y. Our commitment to human
st be absolute, our laws fair,
al beauty preserved; the pow-
t not persecute the weak, and
gnity must be enhanced.
[AVE LEARNED that "more"
cessarily "better," that even
nation has .its recognized lim-
that we can neither answer
ons nor solve all problems. We
'ford to do everything, nor can
to lack boldness as we meet
e. So together, in a spirit of
sacrifice for the common
must simply do our best.
tion can be strong abroad only
trong at home, and we know

administers the oath.
that the best way to enhance freedom
in other lands is to demonstrate here
that our democratic system is worthy
of emulation.
To be true to ourselves, we must be
true to others. We will not behave in
foreign places so as to violate our
rules and standards here at home, for
we know that the trust which our na-
tion earns is essential to its strength.
THE WORLD ITSELF is now dom-
inated by a new spirit. Peoples more
numerous and more politically aware
are craving and now demanding their
place in the sun - not just for the
benefit of their own physical condition,
but for basic human rights.
The passion for freedom is on the
rise. Tapping this new spirit, there can
be no nobler nor more ambitious task
for America to undertake on this day
of a new beginning than to help shape
a just and peaceful world that is truly
We are a strong nation and we will
maintain strength so sufficient that it
need not be proven in combat-a quiet
strength based not merely on the size
of an arsenal, but on the nobility of

IForcingpu blic will on NYofficials

Second of Two Parts

"a DID

Part two of this essay continues the discussion of
New York Citl;'s fiscal crisis by exploring whether the
state's police power and the application of fiduciary
principles to public officials can advance the demo-
. cratic allocation of capital for municipal governments.
The discussion began by exploring capitol allocation
in light of the New York Court of Appeals decision in
the Flushing National Bank case to overturn the NYC
Emergency Moratorium Act as unconstitutional.
The 'police power' of the State
A second important issue that divided the court
in adjudicating Flushing's claim was the scope of the
state's inherent power to protect its citizens health,
safety, and welfare - commonly known as the 'po-
lice power.' The majority opinion si hply failed to
address the long line of decisions which recognize
that every contract includes an implied condition that
the state's sovereign power to secure the general wel-
fare of its people is always reserved, notwithstand-
ing the terms of the contract. At the dissent pointed
out, this means that contracts - including those to
which the state is a part - may be modified in
order to protect the overriding interests of the com-
munity. The U.S. Supreme Court recognized this prin-
ciple in Home Bldg. & Loan Assn. V. Blaisdell dur-
ing the great depression of the 1930's. In Blaisdell
the validity of the Minnesota Mortgage Moratorium
Act was upheld against a challenge that it was re-
pugnant to the 'contract clause' of the U.S. Consti-
tution (an issue that was sidestepped by the Court
of Appeals in Flushing). The Minnesota law, like the
Emergency Moratorium Act, was enacted because of
an economic emergency which threatened the vital in-
terests of the community.
In the present period the importance of the prin-
ciples articulated by the court in Blaisdell and by
the dissent in Flushing cannot be overemphasized.
The police power of the state, which is often view-
ed as a direct threat to civil liberties; could be-
come crucial to the defense of working people's in-
terests. It is the police power of the state that lies
behind the enforcement of safety measures in fac--
tories, environmental standards and housing codes.
It was the police power of the state that the New
York legislature sought to invoke to restructure New
York City's debt in order to maintain vital public
services.* And although the courts have temporari-
ly-put a stop to the exercise of that power, the bat-
tle is far from over. Thus, activists might well con-.
sider Flushing not as a contractual dispute, but as
a basic civil liberties case that suggests a central
problem raised by the urban fiscal crisis. Withouf the

occupy positions of trust have a special responsibility
to those people whose trust they were given. A corol-
lary of this principle is that when a breach of trust
occurs the person in whom the trust was placed (the
ftrustee) is directly accountable to the beneficiaries
of that trust for any injuries that they suffer as a
result. Although the special responsibilities of a di-
rector of a private corporation to a stockholder of
the corporation have been legally characterized as
those of a fiduciary for a long time, the responsibili-
ty of a public official to a citizen has generally been
subject only to political control unless criminal laws
are broken. The most notorious example of the lat-
ter pint was the breach of public trust by Richard
Nixon. An important aspect of ongoing Securities and
Exchange Commission investigations and legal suits
raised in connection with the New York City fiscal
crisis, however, is the possibility that public officials
will be held accountable to the same strict principle
of fiduciary responsibility that are applicable to the
directors of private corporations. The significance of
this possibility for the present discussion is, that it
may offer a mechanism for forcing the directors of
the governmental corporations known as NYC (ie.
M.A.C., E.F.C.B., etc. as detailed in Part I) to re-
spect the majoritarian principles outlined in the body
of this essay.
WHILE USING FIDUCIARY principles to check
the behavior of quasi-public officials may seem po-
litically attractive, the legal problems involved are
considerable if only because public officials are gen-
erally not liable for the exercise of their discretion-
ary powers. Hence, persons seeking to challenge the
abuse of a public official's fiduciary responsibilities
have had to rely upon civil actions involving proper-
ty specifically committed to the management or con-
trol of a public official.
For example, civil service employees were suc-
cessful in their suit to prevent Arthur Levitt, the
State Comptroller -, and by statute the trustee of
certain employee retirement funds - from investing
in $125 million of M.A.C. bonds mandated by the NYS
Financial Emergency Act of 1975. The Court of Ap-
peals found that the mandatory investment of retire-
ment funds entrusted to Levitt would strip him of the
independant judgment essential to his job as a fidu-
ciary for the security of pension benefits. Under hea-
vy political pressure Levitt subsequently invested pen-
sion monies in M.A.C. bonds, purportedly exercising
his own judgment.
Levitt's "capitulation" draws attention to the in-
herent contradictions in advancing fiduciary principles
for the public interest, since a fiduciary is by defini-
tion required to advance the special interests of the
individual or aroun whose interests he or she was

incentive will exist for lifting the veil of secrecy be-
hind which the city's finances are conducted. But on
the other hand the city's ability to attract 'private
investors may be reduced.
ONE LESSON TO BE DRAWN from the suits dis-
cnssed above, however, is that the 1hort run interests
of working people as taxpayers or pensioners can be
advanced by directly challenging the behavior of quasi-
public officials sas fiduciaries. An alert citizen should
have no trouble finding actions by his or her city's.
corporate mayors which appear to be fraudulent or
involve a waste of public money (ie. accepting a bid
to sell ~the city's bonds at an unnecessarily, high rate
of interest). Such taxpayer's suits should be selective-
ly pursued, however, since they will remain essenti
ally private in nature unless and until the courts also
recognize public officials as trustees of a citizen's
democratic rights.
Moreover, it is important to keep in mind that
law suits, by and large, do not educate schoolchil-
dren, build houses or increase the supply of capital
available to city .governments. The people, by direct
action, or through their legislatures must see to that.
And, when they do act, the courts should respect their
judgment unless the action is manifestly unconstitu-
Several political and legal criteria for judging the
behavior of officials who are responsible for (mis)man-
aging the political economy of urban residents have
been advanced in this essay. These criteria should help
people determine more clearly when their needs are
coincident with those of the legal entities Which make
up their local government and when they are not.
Fiduciary suits, however, will not bring back self
government to New York City. Nor are they a blue-
print for combatting the long run tendency of un-
even capitalist development which lies at the root of
the urban fiscal crisis. Challenging the private in-
vestment decisions that are responsible for this ten
dency is the basic struggle in urban politics today.
In the course of that fight creative legal actions
based on fiduciary principles may be useful, how-
ever, in forcing officials, who are insulated from elec-
toral attacks by corporate charters, to protect the
needs' of city residents. The $2.9 million paid to the
two law firms representing "Big M.A.C." during the
first fifteen months of its operation is only one mea-
sure of the waste of living under an unelected cor-
porate government.
*It is only fair to point out that the police power
of the state can cut the other way as a committee

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