Stop Making Sense

This argument has stopped making sense to me.

A guest on "Charlie Rose" is insisting we need new laws so owners of cell phones know what privacy expectations they can have in their phones; what government can, and cannot do, to crack open the encrypted files on their phones when the need arises.

Which makes no sense to me.  At this very moment the government could force their way into my house and remove every piece of paper in it, under a properly authorized search warrant; and examine ever piece of that paper:  every cancelled check, tax return, book on my shelves, papers from students; all of it.  If I don't let them in, they could force their way through my door.  My house is not rigged to explode if they don't turn the door knob, destroying the contents of my house.  If it were, I would be a very dangerous person indeed, and undoubtedly the subject of a criminal investigation.

None of this, apparently, is supposed to apply to my cell phone.  Why?

The phone company has "metadata" on every call I make; to what number, for what duration.  Google has copies of all the e-mails I send and receive; I presume my cell phone carrier has copies of all my texts, as well.  What privacy do I already have, comparable to what Tim Cook and Google and Microsoft think I should have in my cell phone?

What is so unique about a cell phone?

If I want to conduct criminal business, I can learn to do it in ways that leave no trails:  no phone calls, no text messages, no e-mails.  Do I really deserve a heightened privacy in my cell phone because the law the FBI is using now dates to the 18th century, as does the 4th Amendment?  (one is old, the other isn't?)  Does technology truly fundamentally change the way our laws apply?  Cell phones are different from other phones in only one way (see the metadata reference above):  "smart phones" are handheld computers.

If someone wants the computer I'm typing on now, they can break into my house and steal it.  Or any branch of law enforcement could seize it, under a search warrant.  It has more valuable data to me than my cell phone.  It has never occurred to me that such data should be encrypted, should be so protected that if I forget the password, the data will be erased to keep me from blundering into my own files. It's an Apple computer, but it doesn't automatically encrypt anything, and I'd have to find an app to make it encrypt the way an iPhone apparently does.  I've done my tax returns on this computer.  I've bought things on this computer.  I've never bought anything on my cell phone.  But if I had, the major difference would be this:  my cell phone regularly leaves the house.  I've left it behind before.  I could easily lose it altogether.

And for that reason, the FBI should never be able to access it until Congress has worked out rules that let Tim Cook sleep better at night?  Does it worry him that the FBI could enter my house tomorrow and take my computer and my paper files and my books and all the documents in my house?  No; but it worries him they might open my cell phone.

Why?  Where is the fundamental legal issue in cell phones that isn't foreseen in the words of the 4th Amendment and the 200+ years of legal reasoning now wrapped around it?

Am I missing something here?

One word on the Supreme Court impasse

I think it the most important word.

Constitutional government (any government, for that matter) only works so long as the people supposedly operating it, wish it to.  It certainly only works as well as the people operating it wish it to work.

There is no deus ex machina which saves us from the situation of refusing to abide by the fundamental principle that government exists to serve the people, and doesn't exist merely to serve power.  The only reason for the current impasse is that certain people don't want a Justice on the Supreme Court of whom they do not approve as they did of Justice Scalia.  Well, that and we have Senators willing to listen to those people above all others.

This is all about power.  Which, ultimately, is all racism is about:  who has the power, and against whom can they wield it.  This immovable object is only possible because the people placed in positions of public trust, are openly and publicly violating that public trust.

And the public trust is only as sound as the willingness of the public to make it so.

It always comes back to us.  Aye, there's the rub.

Addendum:  I would add, this morning, this article about Scalia from a former law clerk (now Harvard Law Professor) is enlightening.

Literally?

I've never been a big fan of Shelby Spong (and what's a blog post for if you can't complain about what somebody else said, amirite?).  So I rise to semi-praise him in this interview (even though I won't be reading the book) and to challenge some of his assertions.  Such as this one:

Then, by the year 150 or thereabouts, there were so few Jews left in the Christian church that Marcion wanted to remove any semblance of Judaism from the Christian scripture. The church officially resisted that, but unofficially they became quite anti-Semitic. What happens then, you have an audience of only Gentiles reading these Jewish stories and because they don’t understand the storytelling background they have to assume that the stories are literal.

“We imposed fundamentalism on the Bible. No one who has ever read the Bible could be a literalist.”

The literalization of the Gospels is not the result of the authors, it’s the result of a generation 150 years after the birth of Jesus who didn’t know the Jewish tradition so they couldn’t see these connections. They didn’t know, for example, that the feeding of the 5,000 was not a miracle. It was a retelling of Moses’ manna in the wilderness story heightened and applied to Jesus. That’s a very different perspective so the Jews never argued about whether Jesus actually fed all those people with five loaves and two fish. But, if you see it as a familiar story in the Jewish tradition where the food supply is expanded in the Moses story, and in the stories of Elijah and Elisha, then you can retell it about Jesus and magnify it.

I'll accept that literalism did distort the Bible and did do damage to a story Matthew's audience (probably Jews, and Matthew was probably Jewish; although, if we're going to get historical/critical, there probably was no person named "Matthew" who said down and wrote the gospel with that name appended to it the way we expect Stephen King to write his novels.  There are modern examples of this:  Carolyn Keene, "author" of the Nancy Drew novels, or Victor Appleton II, who took over for Victor Appleton and wrote the Tom Swift, Jr. novels I favored as a child.  Even today  Nora Roberts publishes several novels a month; does anyone really think one person named Nora Roberts writes all those novels?  Do her readers really care?.  We can get into the weeds quickly here, you see; then again, same as it ever was.  Safer to say "The Gospel According to Matthew" was written by Jews for Jews, and leave it at that.  Although "Jews" is an anachronism in this discussion, too.....

I'll be quiet now.)

Where was I?  Oh, yeah, Shelby and Biblical hermeneutics.  First:  the problem of Jews belonging to the early church is vastly more complicated than the attempts of Marcion to reduce the canonical gospels to his Thomas Jeffersoned version of Luke.  Frankly, I don't know how you get from Marcion to anti-semitism in the church without passing "GO" or collecting $200.00.  Second:  if no one who has ever read the Bible could be a literalist, how did Marcion become a Biblical literalist?  By being wholly ignorant of the Bible?  Or was it a problem of literacy in the Roman Empire? And did Biblical literalism arise with Marcion and become the only hermeneutic allowed until the Germans came along in the 19th century?  No; of course not.  Biblical literalism is far better attached to the fundamentalist movement of the 20th century, since whatever literalism was involved in the first centuries of church pales by comparison with that effort, and using the term unilaterally as Spong does is to engage in anachronism.  Marcion himself was considered a heretic.    We would today call him anti-semitic because he wanted to remove Christianity from its Jewish roots; but he did so by cutting up the Gospel of Luke and tossing the other gospels altogether.  He was denounced by St. Justin the Martyr, Ireneaus, and Tertullian, so the idea that we should start with Marcion is, let's say, distorted at best.

And the problem, as many scholars have pointed out, has more to do with Hebraic v. Hellenistic thought, than with anti-semitism in the post-Marcion church.  The very idea of an eternal soul is Platonic, not Hebraic.  The idea of history as a indisputable record of events (where even "indisputable" has to be, well, disputable) is Hellenistic, not Hebraic.  The roots of this conflict, in other words, were set down the minute Paul split with Peter over who to evangelize.  That the gospels were interpreted away from their Hebrew roots, and that the Hebraism of Jesus, Paul, Matthew, Mark, and John, as well as the letters of the New Testament, was all too easily lost, can't really be disputed; and that such a "divorce" lead to distortions in the interpretation of the gospels, I quite agree with.  To this day the common wisdom is that the "Old Testament" (actually, the Jewish scriptures) are fraught with war and death and vengeance and an "angry God," while the New Testament is full of love and fuzzy bunnies.  I presume this is where the "contradiction" lies that on-line atheists so often refer to.  The clash arises from ignorance, as Spong implies; not from necessity.

But to explain that any further I'd have to give you a short course in (at least) the work of Walter Brueggemann as well as Western philosophical history.

Take Spong's method and apply it around Matthew, you get (as he does, later) the correct context (IMHO, of course) for the Magi, as well as the flight into Egypt, as well as the Sermon on the Mount (it's more egalitarian in Luke's Gentile telling), and so on.  Frankly, it's come to matter less and less to me how much of this "literally happened."  I spent too many years with "eyewitness testimony" to believe that anything anyone told me was 100% irrefutably true and happened just that way.  You learn to live with a certain fuzziness; and then you learn that the fuzziness is a feature, not a bug.

So I'm not really arguing with Spong, so much as sort of wincing, again, and how he says it.  As when he defends his position, which I actually find kind of refreshing:

I happen to know the Bible pretty deeply and I didn’t reject the Bible when I rejected its literal frame of reference. I happen to be a believing, practicing Christian. I don’t go to church on Sunday mornings for show. I go because I want to be there and I need to worship. It’s not an option for me to sleep in on Sunday. My faith is deeper than that. I do not eat a meal that I don’t stop and say grace beforehand because that’s how I acknowledge the presence of God in my life at a regular time. I try to live a life of absolute commitment. I claim my Christian identity publicly.

This puts me at odds with my colleagues in the Jesus Seminar who are so scholarly but they are not devoted. They really think the church is a sick institution and they don’t want to be part of it. I think the church is the only place we’ve got, but we’ve got to transform and redeem it. If the church is not going to be the place where people encounter God and Christ I don’t see any other place in our society to do so. I work to transform the church. I don’t work to get rid of the church. I work to transform the meaning of what it means to be a Christian, not to get rid of that meaning.

I was never really taught to take the Bible literally.  On the other hand, I finally realized the generally accepted Nativity story made no sense the way we all agree it happened:  Magi and shepherds gathered with ox and sheep around a "manger" while Joseph and Mary look on, with a Star shining directly overhead and an angel hovering nearby.  (Yeah, like the picture.  That's cross-stitch, a set of patterns, and I'm actually working on it.  Had it for 25 years, finally getting around to finishing it.  I have the two left-hand panels finished, and the camel on the far right.  Working on the angels and star to finish the center panel, then the magi on the right to go.)  It's a mash-up of Matthew and Luke, who get the Holy Family to Bethlehem by very different means, and to Nazareth by different means, too.  And besides, the Magi didn't really show up until about two years later.   That mash-up is far more modern than Spong wants it to be, I think.  I've read some of the early mystery plays, including various "shepherd's plays," and they seldom include the Magi showing up to join the shepherds at the manger.  Maybe they took the story more "literally' than we do, or something.

Anyway, I stumbled over that second paragraph, if only because I know (or have met) some of the members of the Jesus Seminar.  The ones I knew didn't think the church was "sick" (one was my NT professor in seminary; he was training people for that institution, and his seminary was sustained by it).  I'm sure some of the members are of that opinion, but scholarship and devotion don't have to go hand in hand.  They don't have to be opposing magnetic poles, either, though.

Spong says he wants to work to transform the church, and that's fine with me.  I have to say the way he used to do it was fairly similar to the way he criticizes now:

But when your agenda is to convert someone to your way of thinking, it’s hostile. You’re saying, “My faith is better than your faith, which means I’m better than you, and if you don’t accept my faith there’s something wrong with you.” That’s hostile and you can’t communicate the love of God through hostility. That’s what we’ve got to break open.

The love of God can never be communicated with human hostility. What we’re to preach in the world is not conversion. It’s to preach the Gospel, which is the infinite love of God for all that God has made. That’s a very different gospel than what I hear going on in places that believe you have to convert or you’re going to fry in hell. I think I’d rather fry in hell than spend an eternity with people who think that way.

The primary issue in the Christian church today is to get away from original sin and to see the story of Jesus not as saving the sinful but as expanding their humanity. I look out not on original sinners but on incomplete human beings yearning to be made whole and that’s what the gospel is all about. It’s not about saving sinners.

I agree with him, there.  But I really like what he says here:

Do you think your view of Christianity will become the majority view at some point?

No, and that doesn’t worry me, because every image in the Bible is a minority image. The Christian church is to be the yeast in the bread, the light in the darkness, the salt in the soup. It’s never supposed to be Christendom running the world. We are to give a flavor to life. We’re remnant people walking into the mystery of God and we have to walk faithfully.

Although part of me has to ask:  if Jesus didn't really recite "the Lord's Prayer" (as Spong asserts in the interview), did Jesus literally say that about the yeast in the bread and the salt of the earth?

And does it really matter?

"Piggy Bank"

How many times have you forgotten the password you used for some computer program?

Security experts advise you have a constantly shifting series of passwords, not just one for everything.  That's like making your password "123456", they say.  But how many times have you forgotten a password, and been unable to access the data you needed?  How many passwords have you reset, or entrusted to your OS or browser's memory?

And now some say eventually Apple or somebody will produce a security system no one can engineer a "back door" for.  All because the FBI wants to conduct a criminal investigation of a dead man's phone that belongs, still, to his employer.

Henry Kuttner wrote a story, "Piggy Bank," about a man who wanted perfect security for his possessions.  The story involves some industrial espionage and a valuable formula which the owner of the "piggy bank" wants kept secret.  He has the perfect security system designed by a man who also knows this formula (the details are sketchy in my memory, and I don't want to get too far into the weeds).  The perfect security?  A robot, plated in gold, covered with the jewels and precious stones that are the fortune.  What good are jewels if they can't be seen, right?

The robot treads the grounds of the owner's estate, flashing in the sunlight.  But without the password to disable it, it cannot be approached.  This becomes the crux of the story:  the creator of the robot dies without revealing the password (skullduggery is involved, IIRC), and then it turns out the password is the formula, which must be shouted at the robot for anyone nearby to hear.  Someone, of course, is always nearby, because a wealthy rival knows this much of the secret.  So the owner of the robot tries a number of methods to contain the robot long enough to disable it.  None, of course, work.  The robot manages to escape every attempt to contain it, until finally the exasperate owner must use the password.  The robot halts, but his most valuable secret is lost.

Be careful what you wish for.  Be careful, especially, when you wish for a perfect security system, one that no one can open.  That no one might be you.  The information that opens it might be of greater value to others than the information being protected.

The problem with absolute security is that it is absolute.  The problem with security is that it can render useless the idea of security; when it becomes a fetish; when we think we can create the perfect set of circumstances.  What good is a safe for storing valuables, if it can never be opened?*

*And part of the problem here is whether or not we really understand what is under discussion.  Is Apple's security truly of a nature that any key will be a key to all Apple devices?  Do words like "lock" really mean something different in this digital age than they did in the 18th century?  Were words really once material things connected inextricably to physical objects, and now they are simply metaphors, quarks replacing atoms, "charm" replacing electro-magnetics?  We're back to the idea of absolute security.  Your personal records are accessible to anyone with the determination to have at them:  alarm systems can be circumvented, safes opened, locks defeated.  Who has a safe that destroys the contents if the combination is not correctly entered within 10 tries?  While we are supposed to be afraid of hackers chasing down our cell phone, the real problem has been data storage by third parties.  If my cell phone is so valuable it contains information I dare not lose, I am a fool to carry it around with me, and risk losing it.  Maybe the problem isn't with our "archaic" laws, or with our metaphors; maybe the problem is with our ideas about what can be "secure," and how free we are to conduct ourselves in this digital world we have created.

The irony of arguments in favor of Apple is that it presumes the digital world is as inalterable as the natural world, and that we have no choice but to live in it entirely.  But we're back to the question of security and privacy that was fought out over issues like Facebook and those pictures you posted in college that suddenly don't look so smart when your employer finds them.  Maybe the issue is not security, and absolute security at that; maybe the issue is how we behave.  And whether or not we can expect someone to save us from ourselves.

Same, in other words, as it ever was.  We have met the enemy; once again, he is us.

**And it occurs to me, if we shift the facts here ever so slightly, do we want a different outcome?  Instead of the FBI trying to crack this phone, what if it is the widow trying to probate her husband's estate, and information on the phone might prove valuable in a will contest case?  If Apple tells the widow "Tough shit, there are larger principles involved here!," do we feel as much sympathy for Apple?  Because the claim here is not government intrusion, but providing a skeleton key to the world.  Change the facts, change the outcome?

Ted Olson told NPR this morning the issue is about China, and Apple's huge customer base there.  Although it doesn't affect the legal arguments in this country, Apple is conducting a PR campaign portraying itself as a champion of civil rights in America (what civil rights exist in China?  Does Apple care?).  Mr. Olson's argument exposes the cynicism of Apple's PR argument.  In this country Apple is using the legal system properly to challenge a court order.  Could they use the same system in China?  Would they defy a Chinese government order without such a system?

Raise Giant Mushrooms In Your Cellar!

Religion Dispatches is one of the more interesting sites I keep track of (out of the three or four I bother with); sometimes it is dully useless, and then suddenly it has two or three sterling posts.

This is one of those latter times.

First, I've never been a fan of TED talks.  This article at RD puts them in the context of American history and gets precisely at why TED talks suck:

There’s a reason new ideas often pass through rather convoluted channels of scholarly vetting, government regulation, and media and public skepticism before they make their way into widespread acceptance: most new ideas are wrong, and some of them are outright deceptive. Cuddy’s big research finding, for example, has proven very hard to replicate. The consultant Simon Sinek’s 2009 TEDx lecture about persuasion–the third most-watched TED talk in history–is such a logical and evidential wreck that it’s not even worth the space to pick it apart here.

This kind of evangelical idealism can also be blind to the workings of power. Good ideas may be transformative, but their lack is not the cause of all the world’s problems. It takes a certain one-dimensionality of thinking to believe that changing your pose for a couple minutes can eliminate the problems in your life. For that matter, it takes a certain one-dimensionality of thinking to believe that an 18 minute-long talk delivered to a crowd of wealthy elites in one of the world’s priciest cities will somehow flip social conditions inside-out.

But if TED and the 19th century lecture circuits—the new lyceum and the old—can offer us anything, it’s a reminder that science and research offer more than new knowledge. They come with a kind of aesthetic, and they invoke certain emotions—among them thrill and hope.

Personally, I have a favorite TED talk: “6 Ways Mushrooms Can Save the World,” in which the mycologist Paul Stamets talks about all the ridiculously useful things you can do with fungi. A bearded bio nerd, Stamets preaches about the use of mushrooms to treat diseases, clean up environmental toxins, and generate biofuels. He imagines a kind of fungal revolution.

Are the world’s environmental problems caused by a lack of good fungal technique? Well, no, there’s a lot more at play. You can’t have a real conversation about environmentalism without discussing capitalism and the distribution of resources—which is to say, power. But after 17 minutes of listening to Stamets, a certain fuzzy optimism takes hold. There’s a promise here that would be familiar, I think, to anyone who’s been moved by a great motivational speech or sermon. It’s a sense that, faced with the grind of daily life, and the intractability of its problems, somehow, through some flash of understanding, the basic terms of our struggle will change.

Yes, I do think TED talks reduce rather neatly to the man with the hammer who sees nothing but nails.  But we aren't all interested in driving nails, so what is it that makes TED talks so popular?  The dirty little secret that TED talks aren't about improving us, but about improving everyone else:

But actually the top ten TED talks are all about you. They’re about the way that ideas can transform your life. They’re about the way you feel when you watch them. They’re about all the times you’ve felt out of place in the world—stifled, unconfident, ill at ease; sent in to tackle a problem with a toolkit that doesn’t quite work. They’re about the capacity for adults to keep on learning. They’re about how your world can change.

How your world can change; not you.  Learning a new posture is not really changing you.  Appreciating the power of mushrooms is waiting for the world to catch on, it doesn't any action on your part (you're just one person, what can you do to see that mushrooms create biofuels and clean up the environment?).  That your world can change means, of course, that you don't have to.    You don't even have to grow mushrooms in your basement, and change the world that way!  You just have to know the power of mushrooms and then it's, hey, why isn't somebody doing this so I can drive a mushroom fueled car?  Because I would if They would!  It's a win-win!  You don't really have to do anything except get more comfortable with the fact that the only tool-kit you need is knowledge!  Understanding is optional, and limited to the material universe and what can be done with it to fix your problem, or the world's problems!  The basic terms of the struggle that are going to change are:  what kind of struggle am I engaged in?  To know myself?  Or to simply know better what the world can offer me?

Aye, there's the rub.  After all, it's far easier to watch a TED talk and conclude that if everyone just watched that social problems would be turned inside out.  Beats actually engaging those problems with your own two hands.

The other article at RD I want to bring to your attention is another excellent contribution from The Cubit.  Here is a nice slice of it:

Second, I think social scientists observe how evangelicals have an influential voice in American politics, and they assume that other religious groups share a similar connection between religion and politics. Perhaps they assume that most religious people gather at least once a week, making religion a convenient place to approach citizens about political issues. But religious beliefs do not equate to churchgoing, and it isn’t at all clear that most ministers make political statements from the pulpit.

Third, if you have strong opinions about religion, you’re probably concerned with its role in politics. People with religious commitments can rejoice that research proves religion to be relevant. Those who are skeptical of religion can reduce the political opinions that they disagree with to idiosyncratic religious dogma. This study on religion and prisoner reentry lends itself to this kind of thinking. Someone who supports reentry, for example, might conclude that their political opposition are just judgmental because they believe in a punitive God.

It's an article about prisons and our attitudes toward them; but really, it's about how we decide what those attitudes are (the poll that people prefer prisoners be punished ad infinitum tend to also believe in a "vengeful God" is based on the responses of 386 people in Missouri, or roughly the entire membership of a small church).  But the analysis of how we think about religion in popular discourse it's what's fascinating.

A person’s religious denomination doesn’t necessarily tell you all you need to know about their actual beliefs. People can identify with specific denominations for reasons other than theology, like family tradition or social connections. It isn’t safe to assume that an individual is familiar with all the finer points of the doctrine within their denomination of choice. So looking at a denomination’s statement of faith wouldn’t necessarily tell you what people in the pews actually think.

Another problem with a lot of these kinds of surveys is that they don’t reveal what people actually mean when they indicate that they adhere to a particular belief.

So for example, in this study, the researchers ask people whether they believe that, “it is important to forgive those who sin.”  I think Christians (who seem to be the main focus of this study) at all points along the political spectrum could agree with that idea very strongly, but what they mean by “forgiveness” could be very different. A person could believe that it is important to forgive formerly incarcerated people by welcoming them into churches, while also believing that criminals don’t deserve any special government assistance. The simplistic way the survey questions are worded doesn’t provide any way to account for this kind of nuance.

Not only does the poll question not account for nuance, the very formulation of the question establishes a simplistic world which doesn't exist, but which then becomes the basis for how we discuss the world we live in.  How do we even get close to the lesson my Pastoral Care professor taught us, that "Life is messy"?  Maybe by abandoning the concept of a public discourse:

I’ve been fascinated by the fact that so many people could share very similar theological views, but then come to different conclusions about what that theology should mean for people in prison.

As I’ve talked with people, it has become clear that a number of other factors play a role: their position within the criminal justice system, their personal experiences with law enforcement, their relationships with incarcerated people. I’ve met people who were staunch supporters of a “tough on crime” approach until one of their loved ones got locked up. I’ve met people who were somewhat indifferent to criminal justice system before they were involved in a prison ministry, and then became ardent advocates for reform. 

How much of the shift in public opinion about gays and marriage (if not yet "gay rights") was attributed to people realizing their friends and family included gays and lesbians, and suddenly their marriages were a good thing, not an appalling thing?  The difference is that gays and lesbians got media coverage:  our prison population, despite being one of the largest on the planet, is almost entirely invisible.

But the relationship of ideas to experience, still holds.   People matter, and ideas eventually fall into line behind that truth.  Not always; and not entirely; but to elevate ideas above people is, ultimately, monstrous.

Which brings us back to the TED talks:  if you want the struggle to change, how do you want that to happen?  Through your efforts in putting a shoulder to the wheel?  Or through changing your mind about what the basic terms of the struggle are?  If you want to change the latter, ultimately all you really want to change is how other people think, so they come around to agreeing with you.  If you want to bring change through the former, it doesn't mean you have to engage a political process or become an activist or even an "agitator" (Jim Hightower's definition of an agitator:  the thing in the washing machine that gets the dirt out).  Maybe all you have to do is change your understanding of the terms of the struggle.  In Christian terms, that means first seeing the presence of the basiliea tou theou.  But the second part, and harder, is living in the basiliea tou theou.

That's a struggle no TED talk can help you with.  But maybe the fact that TED talks are "secular sermons" points a way out of the problem.  Because living a secular life is always easier than living a religious life.  The world has always supported the former; the world has never really supported the latter.  But one is the way of wisdom; and the other is just the way of the world.

The Carousel of Time

I have a lot of respect for Josh Marshall, but I always figured that, not being a Southern boy, he was a bit obtuse on the ways of race and politics from the South.  He's right about this, though:  Barack Obama is being opposed now by Mitch McConnell (a Senator from a Southern state; and supported very publicly by John Cornyn, also from a Southern state) because Barack Obama is black.

What still surprises is that it took so long for JMM to see it.  But when the scales fell from his eyes, they fell completely:

It is mind-boggling to see that it is considered a point of serious discussion that President Obama made race relations in this country worse.

That's almost lost in the entire post, but if you take seriously what Marshall points out, it isn't mind-boggling at all that Obama gets blamed because race relations haven't improved.  That's the very nature of being black in America that's encapsulated in the long quote in the middle of Marshall's article.  The problem is Marshall's argument, starting with the persecution of Bill Clinton which made him, in significant ways the "first black President," misses what Gene Lyons pointed out at the time:  this is Southern politics played out on the national stage.  Whitewater was nothing more than Little Rock on the Potomac.  And now, of course, with Barack Obama in the White House, a President doubly-damned because he is black and a Democrat, the former Democratic bastion of the South is doubly-disappointed that the Democrats abandoned them, and put a black man above them in their White House (and yes, I'm not just referring to the paint color).

Being a Democrat in the South was a matter of heritage until the Civil Rights and then the Voting Rights Act, and you can't understand the animosity toward Barack Obama without understanding that.   It's as much a part of Southern history as slavery and the Civil War, and it's another reason that war is over but the melody lingers on.  If it is mind-boggling to see that we are having a serious discussion about how Obama made race relations worse in this country, you only have to pay attention to the history of the South, a history that goes far beyond Harper Lee's one novel, or even her "second" one (which is not as good as the famous one but, in some ways, more interesting), and not be gulled by the excitement that 2008 proved we were now a "post-racial society."  And that history includes the fact that the South continued to live almost as if the Civil War never happened far into the 20th century; and the rest of the country did, too.  After all, it took a Southern President to pass federal laws that began to break down the racism that was endemic to all of America.

We were never a post-racial society because of the election of Barack Obama; it just made us feel good to imagine we were.  If Barack Obama had even once shown a glimmer of anger about race in America, he would have been damned as the "angry black man," and that would have been an end to him.  Martin Luther King coming out against the Vietnam War would, by comparison, have been a mere slip of the tongue.  Whenever Obama even noted his race, as when he said his son would have looked like Trayvon Martin, it caused screams of outrage that betrayed the racism that now even dares speak its name because it's not about race, it's about how Obama has "damaged America."  And yet as long as Obama ignored the issues of race in America, we could pretend that was all behind us, that we had left it in those black and white photos of the Sixties.

That Obama has been a disaster for America is an article of faith among many Fox News viewers.  How he as done this cannot be defined; it is simply agreed that he has.  Because he is a Democrat?  Partly; but we all know it is more than that.  It is a continuation of the politics used against Bill Clinton, but the difference is this:  Bill Clinton supplied his enemies with ammunition, small caliber though it was; and Bill Clinton was white.

Barack Obama has made the ugliness of American politics plain for all to see.  Maybe it's more toxic than ever it was before, but I don't think so.

I think it's just more visible.  Any culture built on conquest, genocide, and an international slave trade, cannot forever pretend to its innocence and purity of heart.  Donald Trump wants to "Make America Great Again!," and we all know what he means; it's barely even encoded.    In fact, it explains the animosity that continues toward "Obamacare."  As the Rev. Al Sharpton told Larry Wilson, Obama provided healthcare for 19 million people.  Poor people.  Non-white people.

And that's how Obama "damaged" America.

So the Bible says, and it still is news....

Charlie Pierce laments the failure of populism:

As we may have mentioned here before, it's important to remember that the late Adam Clayton Powell warned us against "Greeks bearing gifts and white men who understand the Negro." But the composition of the audience at the Sanders event is Greenville was so strikingly uniform that it fairly screamed out a message—that populism in America remains vulnerable to coded appeals to racial division and that, in Donald Trump, it has found that its vulnerability to authoritarianism is paradoxically part of its electoral strength. Gently, as in the Clinton campaign, and brutally, as in the Trump campaign, populism in America once again has demonstrated that it is too easily turned into a vehicle of division because the American Dream too often is a gated community of the furious and the deluded.

Or, in a word, the American Dream is based on scarcity, and how you don't want to be on the wrong side of that equation.  Yes, yes, it's all about prosperity and the car in the garage, the chicken in the pot, and 2.5 kids; but that's still scarcity, because it's always a zero-sum game that only certain people (preferably white, but it's not about race because in America it's never about race) can play, because including more people in the opportunities means fewer opportunities for the people who deserve them.

The ardent Millenials who support Bernie being all about free college and forgiven college loans and free healthcare so they don't need a job or have to buy insurance, and not really all that interested in social justice when it comes down to it, unless that comes after the free college and the free healthcare.  No more than Trump is offering social justice, no more (really) than Clinton is.

Then again, it wasn't populism that got the Civil Rights Act passed, nor the Voting Rights Act, or that supported the efforts of the Great Society.  The Texas Constitution is a product of almost pure, undiluted 19th century Populism.  It has provisions damning banks and railroads.    It was a farmer's constitution.  The city seal of Houston still has a railroad engine on it, so important was rail to the city once, so that rage was more honored in the breach than in the keeping.  Today Texas has one of the highest percentage of minimum wage jobs in the country (and nothing raising the minimum wage above the federal level in state law), and the highest percentage of children without insurance coverage, and some of the strictest requirements for Medicaid qualification (and a flat refusal to expand Medicaid, despite the best efforts of hospitals and counties in the state, counties that run hospitals for the indigent).

So, IMHO, it isn't just that economic populism "remains vulnerable to coded appeals to racial division," but that even populism is all about who's got, and who doesn't, and moving that Overton window around rather than smashing it, as the basis for a true revolution and a real attempt at, well, let's call it "mercy."

Well, we all wish something better for us had happened

If wishes were horses:

Sanders, who won the New Hampshire primary, discussed his loss on NBC's "Meet the Press." He touted his win among Latino voters, but noted the turnout rate.

"But the voter turnout was not as high as I had wanted," Sanders said. "And what I've said over and over again, we will do well when young people, when working-class people come out. We do not do well when the voter turnout is not large. We did not do as good a job as I had wanted to bring out a large turnout."

Or is it "If frogs had wings"?

Total vote count for Nevada Democratic caucus 2008:    10649

Total vote count for Nevada Democratic caucus 2016:    11389  Clinton got 52.7% of the vote, Sanders got 47.2% of the vote.

So, yeah, the game would have gone better if my team had scored more points and, you know, won.  I've said over and over again, my team does well when they score more points than the other team, and they don't do well when they don't.

You can just kinda tell he's new at this.

"Pope Francis calls for end to the Death Penalty"

Maybe if we could connect the timing to Scalia's funeral or something:

Speaking to a crowd at St. Peter's Square on Sunday, Pope Francis called for a global ban on the death penalty, Reuters reports.

"The commandment 'You shall not kill' has absolute value and applies to both the innocent and the guilty," he said.

Otherwise, what he said on the plane home will still get more press attention in America than anything he said in Mexico or Vatican City:

On Sunday, Francis also called for better conditions in prisons.

He's serious about this:

"I make an appeal to the conscience of all rulers, so that we can achieve an international consensus for the abolition of the death penalty," the Pope said in his Sunday address in St. Peter's Square.

"And I propose to those among them who are Catholic to make a courageous and exemplary gesture: that no sentence is executed in this Holy Year of Mercy." 

Even if bitter experience tells me mercy doesn't deliver eyeballs for internet ads, lighting a candle is still better than cursing the darkness.

Notes toward a new paradigm of truthiness

"Don't for heaven's sake, be afraid of talking nonsense.

But you must pay attention to your nonsense."--Ludwig Wittgenstein

Pay no attention to me, I'm just making notes in public about the "latest thing."  File under "No Sh*t, Sherlock!", if you wish; alongside practically everything NPR ever reports on from social science ("If it's science, we KNOW it's true!")

Somewhere in the history of Western thought in particular, we ended up with this model of subjects as primarily linguistic thinking beings. There’s this notion that the first thing that happens leading to an action is a word.

[In affect theory,] rather than thinking about the self as being a language—as being like a computer code that speaks—we think about the self as a cluster of forces. [These forces] make us what we are, and our decisions come from that rather than from this linguistic layer, which is actually constituted by that more fundamental cluster of forces.

That’s what I see affect theory doing: upsetting this idea that human beings start with language and that we do what we do because we’re linguistic beings.

Well, not "somewhere," actually; it goes back to the Greeks, for whom logos meant both "word" and "reason."  It's pretty simple, really.  I mean, if where word and language became primary in Western thought is still a mystery to you....

And besides, this "problem" is the overwhelming concern of modern Continental philosophy, from Wittgenstein through Derrida (it's what "deconstruction" is all about; dethroning the primacy of the logos).  Again, this isn't really a mystery, except as it gives me the opportunity to re-examine Wittgenstein, Derrida, Austin, etc.

“In the beginning was the Word.”

Exactly. I think that there’s a very strong line of continuity between that notion of sovereignty as coming through language to where we are now, where we see language as fundamentally what power is.

Except John used the Greek word logos, with its dual meaning of "reason" and "word," and was incorporating the Greek concept of creation:  that logos imposed order on chaos, giving rise to the universe we live in.  Which is why John goes back to "in the beginning."  Again, this ain't rocket science; I learned this in seminary nearly 20 years ago, and it wasn't new thinking then, either.  As for the insight that "language [is] fundamentally what power is, " again, see Derrida, Jacques.  There's a lot of work been done on this with regard to religion,  too, especially by Derrida, who was employed as a professor of philosophy of religion for most of his very productive academic life.  Credit where it is due, and all.  Albeit, this is right, if rather weakly supported by "affect theory":

Many people think of religion as a set of propositional beliefs that can be written down in a book.

Which I think is where so often secularists and atheists misunderstand how religion is actually operating. And how secularists and atheists misunderstand how secularism and atheism are actually operating. Because all of those things are drawn by affects.

You see it right away in someone like Richard Dawkins. He sees God as a hypothesis. He sees it as a propositional statement that is reducible to a set of beliefs. But I think most people don’t really encounter religion in that way. They encounter it as affects moving through them. Even if their language insists on seeing it as a set of propositional beliefs, I think that there’s something more fundamental and more powerful going on there. 

Or, as Wittgenstein said:

Christianity is not a doctrine, not, I mean, a theory about what has happened and will happen to the human soul, but a description of something that actually takes place in human life. For 'consciousness of sin' is a real event and so are despair and salvation through faith. Those who speak of such things (Bunyan for instance) are simply describing what has happened to them, whatever gloss anyone may want to put on it.

--Ludwig Wittgenstein, "Ethics, Life and Faith," The Wittgenstein Reader, ed. Anthony Kenny (Oxford, Blackwell Press 1994).   Or, as William James pointed out much earlier:

The freedom to ' believe what we will ' you apply to the case of some patent superstition; and the faith you think of is the faith defined by the schoolboy when he said, " Faith is when you believe something that you know ain't true." I can only repeat that this is misapprehension. In concreto, the freedom to believe can only cover living options which the intellect of the individual cannot by itself resolve; and living options never seem absurdities to him who has them to consider.

James was struggling with it, but that struggle has been superseded in philosophical and theological circles long since.  Both philosophers and theologians have dealt with "patent superstitions" and the meaning of the word "faith" for over a century, now.  What's truly frustrating is that nobody is paying attention outside of those circles.  We really don't need to rediscover fire again.  Which means the real problem with Dawkins is:  he doesn't know what he's talking about.

And, for no good reason except as a substitute for Richard Dawkins, I'll direct you to some perfectly absurd statements by Steve Weinberg here (the part in bold at the end, to save time) that are too long to quote directly, and set them against Wittgenstein:

For it is clear that when we look at it in this way everything miraculous has disappeared; unless what we mean by this term is merely that a fact has not yet been explained by science which again means that we have hitherto failed to group this fact with others in a scientific system. This shows that it is absurd to say 'Science has proved that there are no miracles.' The truth is that the scientific way of looking at a fact is not the way to look at it as a miracle. For imagine whatever fact you may, it is not in itself miraculous in the absolute sense of that :om. For we see now that we have been using the word 'miracle' in a relative and an absolute sense. And I will now describe the experience of wondering at the existence of the world by saying: lt is the experience of seeing the world as a miracle. Now I am tempted to say that the right expression in language for the miracle of the existence of the world, though it is not any proposition in language, is the existence of language itself. But what then does it mean to be aware of this miracle at some times and not at other times? For all I have said by shifting the expression of the miraculous from an expression by means of language to the expression by the existence of language, all I have said is again that we cannot express what we want to express and that all we say about the absolute miraculous remains nonsense. Now the answer to all this will seem perfectly clear to many of you. You will say: Well, if certain experiences constantly tempt as to attribute a quality to them which we call absolute or ethical value and importance, this simply shows that by these words we don’t mean nonsense, that after all what we mean by saying that an experience has absolute value is just a fact like other facts and that all it comes to is that we have not yet succeeded in finding the correct logical analysis of what we mean by our ethical and religious expressions. Now when this is urged against me I at once see clearly, as it were in a flash of light, not only that no description that I can think of would do to describe what I mean by absolute value, but that I would reject every significant description that anybody could possibly suggest, ab initio, on the ground of its significance. That is to say: I see now that these nonsensical expressions were not nonsensical because I had not yet found the correct expressions, but that their nonsensicality was their very essence. For all I wanted to do with them was just to go beyond the world and that is to say beyond significant language. My whole tendency and I believe the tendency of all men who ever tried to write or talk Ethics or Religion was to run against the boundaries of language. This running against the walls of our cage is perfectly, absolutely hopeless. Ethics so far as it springs from the desire to say something about the ultimate meaning of life, the absolute good, the absolute valuable, can be no science. What it says does not add to our knowledge in any sense. But it is a document of a tendency in the human mind which I personally cannot help respecting deeply and I would not for my life ridicule it.

Note Wittgenstein starts with the premise "if we look at it in this way."  That gives Weinberg a bit of an out ("are these things right or wrong?"), but Wittgenstein has the grace to respect it; what Weinberg cannot understand he deems beneath consideration.  Is this a limit of language, or of capacity?  If it's an affect, it isn't one as described by "affect theory."  Which is beginning to sound like an idea one turns to because philosophy and theology are too difficult.  Not that I disagree that matters important to people are not composed solely of ideas reached through the processes of cool reason.

But again, that's what Kierkegaard was on about, when he almost single-handedly invented existentialism; which is pretty much the sounder philosophical grounding of Romanticism.  (Which is to say both, these matters need to be put in context, and no, I don't agree with Wittgenstein that science is our only source of knowledge, if only because that's too narrow a definition of "knowledge."  But that's not an argument about affect or theory, either.  Because, as Ludwig says of some ideas, "their nonsensicality is their very essence."  Which is itself both Romantic, and existential; and maybe even deconstructionist.  Hey, a trifecta!  What do I win?)

Trump v. Pope: Round 1

Does this make sense to anyone else?

The Mexican government and its leadership has made many disparaging remarks about me to the Pope, because they want to continue to rip off the United States, both on trade and at the border, and they understand I am totally wise to them. The Pope only heard one side of the story - he didn’t see the crime, the drug trafficking and the negative economic impact the current policies have on the United States. He doesn’t see how Mexican leadership is outsmarting President Obama and our leadership in every aspect of negotiation.

For a religious leader to question a person’s faith is disgraceful. I am proud to be a Christian and as President I will not allow Christianity to be consistently attacked and weakened, unlike what is happening now, with our current President. No leader, especially a religious leader, should have the right to question another man’s religion or faith. They are using the Pope as a pawn and they should be ashamed of themselves for doing so, especially when so many lives are involved and when illegal immigration is so rampant.

The Pope, leader of Catholics the world over, the man who brokered the rapprochement between Cuba and the U.S., was hoodwinked by Mexico?  Because he said this?

"A person who thinks only about building walls, wherever they may be, and not of building bridges, is not Christian. This is not the gospel," he said.

He declined to say whether Americans should vote for Mr Trump, who is leading the Republican race for president.

"I say only that this man is not Christian if he has said things like that. We must see if he said things in that way and I will give him the benefit of the doubt," the Pope said.

This is a man who visited a prison in Mexico and told the prisoners there:  

His visit was seen as a chance to give hope to the city's residents, who lived through a spate of murders of women and rampant drug violence which meant few dared leave their homes at night.

"The problem of security is not resolved only by incarcerating; rather, it calls us to intervene by confronting the structural and cultural causes of insecurity that impact the entire social framework," the pope told the inmates. 

Which is a far more radical assessment and critique of the social order than even denouncing institutional racism.  And in his Mass, celebrated in Cuidad Juarez, the pontiff noted:

"We cannot deny the humanitarian crisis which in recent years has meant the migration of thousands of people, whether by train or highway or on foot, crossing hundreds of kilometers through mountains, deserts and inhospitable zones," he said. "They are our brothers and sisters, who are being expelled by poverty and violence, drug trafficking and organized crime."

Francis also praised the work of activists who "are on the front lines, often risking their own lives" to help those caught up in the migration crisis. "By their very lives, they are prophets of mercy," he said.

And then, in a pointed message, Francis added a politically charged greeting to the 30,000 people gathered in the Sun Bowl to watch the simulcast on giant TV screens.

"Thanks to the help of technology, we can pray, sing and celebrate together this merciful love which the Lord gives us, and which no frontier can prevent us from sharing," Francis said. "Thank you, brothers and sisters of El Paso, for making us feel like one family and the same Christian community." 

Yeah, Mexico hoodwinked the Pope.

And what's that promise that Trump will protect Christianity when he's president, and that a religious leader questioning Trump's faith is an attack on Christianity itself?  Are we gonna fire up the Protestant v. Catholic animosities of 500 years ago just as the Reformation reaches its 500th birthday?  Are we supposed to be electing an American Pope?

This is seriously nuts.

On death and penalties....

After my first reflexive thought that I was relieved Scalia was dead, I collected myself and wrote the following on my Facebook page:

What I think and what I feel about the death of Justice Scalia is not entirely within my control, but what I say publicly is. My private and now my public prayer: May Antonin Scalia rest in peace. May God give comfort and consolation to all who love him.

My statement after I collected myself was genuine, as was my first thought and my spontaneous laughter at my friend's post. Sometimes we just do the best we can.

In that spirit, let me offer this:

A local law professor on a local NPR show just mentioned that the late Antonin Scalia was "in charge" of the 5th Circuit, which includes Texas, the state most notorious for it's use of the death penalty.

That appointment is made by the Chief Justice, who might not give it to the next Justice on the bench (but probably will; I doubt a massive fruit-basket turnover would be politic in chambers, but of course I could be wrong).  Still, for the time being, the most vociferous proponent of the death penalty (the law professor's description, not mine) is no longer either on the Supreme Court, nor in charge of giving the first look at such cases coming out of Texas.

This may be a good thing immediately.  Not a reason to rejoice in death; but at least a reason to see that the arc of the universe does bend toward justice.

τὸν τεθνηκóτα μὴ κακολογεῖν

Memento mori

We assume a special attitude towards the dead, something almost like admiration for one who has accomplished a very difficult feat. We suspend criticism of him, overlooking whatever wrongs he may have done, and issue the command, De mortuis nil nisi bene: we act as if we were justified in singing his praises at the funeral oration, and inscribe only what is to his advantage on the tombstone. This consideration for the dead, which he really no longer needs, is more important to us than the truth, and, to most of us, certainly, it is more important than consideration for the living.

--Sigmund Freud

"The evil that men do lives after them; The good is oft interred with their bones..."

--William Shakespeare

News of the death of another famous person raises again the spectre of death in our own lives, and not surprisingly the concept of not speaking ill of the dead.  Screw it, some say; it's the price of being a person we didn't like in life.

Well, I didn't like Antonin Scalia's legal opinions.  I feel no compunction in speaking ill of them, as I did it when he was alive.  But I had no idea Mr. Scalia was good friends with Ruth Bader Ginsburg, a Justice whose legal opinions I do admire.  Should I think less of Justice Ginsburg?  Or reflect that I didn't know Scalia personally, at all; and despite the fact the anecdotes I've read about him since his death don't endear him to me, why should I speak ill of him now?

His legal opinions I can denigrate.  The outcome of his actions I can decry, at least insofar as they are the actions of his professional efforts.  Mine, too, will come to judgment, pitiful though they are.  More likely mine won't even be noticed, so I won't leave my friends and family behind to suffer the slings and arrows of an outraged public.

But already the politicians in Washington are behaving like jackals at the feast; like the lawyers left behind by Ivan Ilyich, whose only thought is to their advancement, to the furtherance of their careers, now that a place has been left open by the death of one they no longer regard as of any interest to them.

Are these things right, or wrong?

And:  "My death; is it possible?"  That's the question raised by the death of someone else.  One defense to castigating the person of Scalia is that people will talk ill of the critic when her time comes, so turnabout is fair play.  But the fact is, people can speak ill of you now.  Whether they will bother to speak of you at all after you are dead, is beyond your care or control.  Like telling people what you want at your funeral, it is an exercise in denying the reality of your own death to declare yourself fair game for the potshots of those who bother to remember you at all.  You won't be there, and what is said about you is said for the benefit of the living.

And especially in a time of mourning, why would you insult the living?  While he was alive I had realized, hazily, that Antonin Scalia was married, that he had a wife.  Until two days ago I had never considered that he had an adult son; and perhaps he has other children.  If I speak ill of the late Mr. Scalia, if I castigate him for being the person he was, not just for the legal arguments he made, am I not speaking, even indirectly, to his children?  And why do I want to insult them?  I can't argue with Mr. Scalia any more; why should I make his family his proxy?

I was criticized as a bad person when I was in the pulpit; perhaps that is why I am so sensitive to this issue.  My decisions were made as a pastor, in the role I held.  They weren't made as personal opinions on which people in my care were good, which were bad; but still, they were treated that way.  I was treated that way; and I saw what it did to my wife, to my child.  That's probably why, more than any other reason, I finally turned my back on the ministry, why I am glad I never found another place in another church.

My decisions as a pastor can be criticized; my wife is still my kindest but sharpest critic:  she sees with clear eyes what I did wrong.  But she understands my decisions were not a reflection of my personhood, that what I did wrong was not because I am a "dick."  I'm a great admirer of the works of a great many people; that doesn't mean I admire their personal lives, or the choices they have made in how they treat others.  I am not so perfect I can sit in the seat of judgment, or point a finger and not have three more fingers pointing back at me.

But above all, we do not speak ill of the dead because they are beyond correcting the record we want to lay down.  As Shakespeare noted, it is the evil we do that lives after us, and not just because evil is permanent, and good evanescent.  It is because the living find it easier to remember the evil done by the dead.  The living tend to use that to feel better about themselves,  even to imagine death will not be the same for them.  If our evil lives after us, it is because the good we try to do is so easily forgotten.  Even in our own lives we remember pain far longer than we remember pleasure.  As Ecclesiastes noted:

There was once a small town with few inhabitants, which a great king came to attack; he surrounded it and constructed huge siege-works against it.   There was in it a poor wise man, and he saved the town by his wisdom.  But no one remembered that poor man.  (Ecclesiastes 9:14-15, REB)

The evil men do lives long after them; the good is interred with their bones.  If we speak ill of the dead, it is because it is so easy to do so.  If we refrain, it is from respect for their family, their friends, even their memory.  If we refrain, it is the least measure of respect and decency we should ask for ourselves; for our family and friends.

Remember your Creator before the silver cord is snapped and the golden bowl is broken, before the pitcher is shattered at the spring and the wheel broken at the well, before the dust returns to the earth as it began and the spirit returns to God who gave it.  (Ecclesiastes 12: 6-7, REB)

Ideas don't matter; things don't matter.  People matter.

De mortuis nihil nisi bonum.

None dare call it pandering.....

"...and a car in every garage."

Bernie Sanders told the UAW that manufacturing jobs will return to the U.S., and American corporations will spend their money on factories here, not abroad.

A pledge I cannot distinguish from Trump's promise to build a "yooge" wall on the U.S./Mexican border that Mexico will pay for; except I'm more sympathetic to Sanders' promise than to Trump's.

But the former is no more possible than the latter.  Although I'm sure I'll encounter some Sanders supporter in comments somewhere who can explain to me on Sanders' behalf that:  “I know that you believe you understand what you think I said, but I'm not sure you realize that what you heard is not what I meant.”

Antonin, we over-knew ye

I had a long, turgid post on Scalia's "originalism," placing it in context with legal positivism and legal realism.  But the fact is, "originalism" was a scam, a con, a not-so-sly joke of Scalia's, aimed at post-modernism and its theories that rest on the necessity to interpret, and how interpretation undermines all claims to truth and absolute validity.

Scalia wanted validity, and appealing to the original intent is the way to get there.  Just ask the fundamentalists.

The past is always (still) the place where everything made sense, the present roils with confusion and alarums as ignorant armies clash by night on the darkling plain of possibility, and the future is apocalyptic:  either a blighted wasteland or a corporately-controlled hellscape.  That, at least, is the most common view of time in our culture today.  Yesterday all the past, as the poet said, and we long to return to that time when everything was orderly and unified and no one quarreled about basic tenets of civility and decency the way they do today.

Right, Parson Weems?

So "originalism" appeals to a knee jerk reaction to believe that at one time we figured it all out, and then history or politics or just "them" intervened and messed it all up, and now we've got to get back to the Garden.  Not move forward; never forward; that way lies disaster and more of the present same.  Back, we must beat back against the tide, into the past where life was simpler and more true.

Originalism was never a judicial philosophy nor even a coherent set of reasons for statutory or Constitutional interpretation.  It was Scalia's not-so-clever rejection of modernity in favor of whatever he favored.  It wasn't clever; it was Scalia laughing up his sleeve, because he was always right about the law.  And he was always right because he was Scalia, and he was smart; didn't everyone say so?

Dahlia Lithwick remembers reading Scalia's opinions in law school and while disagreeing with them, still enjoying his style, his zingers, his lively writing amid the dull plodding prose of legal opinions (and they are deathly dull.  Reading legal opinions in law school textbooks can make you want to read the dictionary just for the plot.).  I'm too old to have ever read Scalia's opinions; he was appointed to the bench just before I graduated from law school.  I had to take my pleasures in finding the few cases in the books by Learned Hand or Benjamin Cardozo, judges who taught me what it meant to truly understand the law and its place in human society.  Cardozo and Hand wrote with wisdom, with compassion, with understanding for the complexities of human experience, the limits of human reason, the need to bend the law to fit the human condition.

Above all, they wrote with blazing intelligence and humble hearts.  Scalia didn't hold a candle to them.

There's much speculation Scalia will be remembered by history.  I can't join in these accolades.  The true giants, the ones who stand head and shoulders above the rest, are few and far between, and are seldom lauded by the many-headed.  People still admire Holmes (they made a movie about him!) although his legal opinions are hardly the stuff of legal history, and some are bluntly offensive (as in his defense of eugenics laws) or the completely misunderstood admonition against shouting "FIRE"! in a crowded theater.  No one quotes Cardozo or Hand, but their legal opinions are Olympian and worthy of study of what humans can achieve.

Scalia's legacy is Citizens United and Bush v. Gore, and the "broccoli argument" in the first ACA suit.

I rest my case.

Presidents Day*

From an interesting article at Salon, a passage about the notorious biography of George Washington published by Parson Weems in 1800:

The good parson’s Washington retained his heroic character as president by existing above partisanship when other mortals could not. The “unutterable curses of FACTION and PARTY, rose often in the mind of Washington, and shook his parent soul with trembling for America.” To honor his memory, then, citizens were urged to wake from all pettiness and “fly from party spirit,” which was “the only demon that can prevent favoured America from rising to the greatest and happiest among the nations.”

Political commentary you could have heard yesterday morning on any of the Sunday morning news shows.

*Which is actually still the observance of Washington's Birthday, although his birthday on the Gregorian calendar was February 22.

Same song, second verse

The More Things Change, Dept.:

During an interval in the Melvinski trial in the large building of the Law Courts the members and public prosecutor met in Ivan Egorovich Shebek's private room, where the conversation turned on the celebrated Krasovski case. Fedor Vasilievich warmly maintained that it was not subject to their jurisdiction, Ivan Egorovich maintained the contrary, while Peter Ivanovich, not having entered into the discussion at the start, took no part in it but looked through the Gazette, which had just been handed in.

"Gentlemen," he said, "Ivan Ilyich has died!"

"You don't say so!"

"Here, read it yourself," replied Peter Ivanovich, handing Fedor Vasilievich the paper still damp from the press. Surrounded by a black border were the words: "Praskovya Fedorovna Golovina, with profound sorrow, informs relatives and friends of the demise of her beloved husband Ivan Ilyich Golovin, Member of the Court of Justice, which occurred on February the 4th of this year 1882. The funeral will take place on Friday at one o'clock in the afternoon."

Ivan Ilyich had been a colleague of the gentlemen present and was liked by them all. He had been ill for some weeks with an illness said to be incurable. His post had been kept open for him, but there had been conjectures that in case of his death Alexeev might receive his appointment, and that either Vinnikov or Shtabel would succeed Alexeev. So on receiving the news of Ivan Ilych's death the first thought of each of the gentlemen in that private room was of the changes and promotions it might occasion among themselves or their acquaintances.

"I shall be sure to get Shtabel's place or Vinnikov's," thought Fedor Vasilievich. "I was promised that long ago, and the promotion means an extra eight hundred rubles a year for me besides the allowance."

"Now I must apply for my brother-in-law's transfer from Kaluga," thought Peter Ivanovich. "My wife will be very glad, and then she won't be able to say that I never do anything for her relations."

Leo Tolstoy, 1886

Antonin Scalia R.I.P.

First, let me say how disgusting it is that Mr. Scalia (whom I despised as a jurist, but will honor as a human being and fellow mortal) is not yet removed from Texas to return to his family before the ugliest side of politics is exposed by the likes of Ted Cruz.

That said, Kevin Drum gets it right:

This is going to set up an unbelievable battle in the Senate. I wonder if Republicans will even make a pretense of seriously considering whoever President Obama nominates?

And the answer to that is:  No.  As Josh Marshall points out, it took less than an hour to settle that issue.  Any nomination for the Court is dead until 2017.  Which, as Drum points out, isn't all bad:

In the meantime, the court is split 4-4 between conservatives and liberals. So even if Republicans refuse to confirm a new justice, Obama's laws and executive orders are safe for another year in any case for which the opinion hasn't yet been finalized. You can't overturn an action on a 4-4 vote. This means that EPA's carbon rules are probably safe. Ditto for Obama's immigration executive order. Union shops in the public sector are probably safe. Abortion restrictions probably won't go anywhere. One-person-one-vote is probably safe.

Either way, this is now the most important issue in the presidential campaign. Appointing Supreme Court justices has always been one of the biggest reasons to care about who wins in November, but it's stayed mostly under the radar until now. No longer. Both sides will go ballistic over this, and the Supreme Court will suddenly seem like the most vital presidential power ever. If you thought things were getting nasty before this, just wait. You ain't seen nothing yet.

So the GOP may run on this, hoping it gives them some traction.  However, what of the EPA?  What of immigration?  Unions in the public sector?  Voting rights?

How much pain will they put up with in hopes of getting one Supreme Court Justice, especially if their nominee is either Trump or Cruz?  How great a risk do they wish to take that those issues are left alone by a divided Court and dropped from its docket, perhaps never to return?

What's decided in an hour may well be repented upon for much, much longer.

There is a price to be paid for inhumanity and foolishness, and it is not always paid merely in clucking tongues and the disdain of those with better regard for the customs of decency.

A Lenten Meditation

No, not drawn from scriptures; drawn from movie trailers.

Trailers for a movie, specifically.  It's the line spoken by Lex Luthor (Jesse Eisenberg):

"Do you know the oldest lie in America?  It's that power can be innocent."

Reinhold Niebuhr couldn't have said it better.

"Somethin' happenin' here, what it is ain't exactly clear...."

Nate Silver's analysis jibes with my experience among college and high school students, and the attitudes of my Millenial daughter.  True, she agrees with me on politics, but I'm much more radical about economic issues than she is.  I'm a child of the '60's, she's a child of the 21st century.  The '60's were a much less challenging time, economically, than she's ever known.

Just as “socialism” is becoming more popular with young Americans, so is another label that implies a highly different set of economic policies. Americans aged 18-29 are much more likely than older generations to have a favorable view of the term “libertarian,” referring to a philosophy that favors free markets and small government. Indeed, the demographics of Sanders’s support now and Ron Paul’s support four years ago are not all that different: Both candidates got much more support from younger voters than from older ones, from men than from women, from white voters than from nonwhite ones, and from secular voters than from religious ones. Like Sanders, Paul drew more support from poorer voters than from wealthier ones in 2012, although that’s not true of libertarianism more generally.

If both “socialism” and “libertarianism” are popular among young voters, could it be that younger voters have a wider spread of opinions on economic redistribution, with more responses on both the “0” and “100” ends of the scale? It could be, but that’s not what the data shows. In fact, on the General Social Survey question I mentioned earlier, younger Americans were more likely than older ones to be concentrated toward the center and not toward the extremes on the redistribution issue.

The cynical interpretation of this is that the appeal of both “socialism” and “libertarianism” to younger Americans is more a matter of the labels than the policy substance. Relatedly, it’s hard to find all that much of a disagreement over core issues between Clinton and Sanders, who voted together 93 percent of the time when they were both in the Senate from 2007 to 2009.

But terms such as “liberal” and “conservative” are fairly cynical also, at least in the way they’re applied in contemporary American politics. Rather than reflecting their original, philosophical meanings, they instead tend to be used as euphemisms for the policy positions of the Democratic and Republican parties, respectively. Those parties’ platforms are not all that philosophically coherent, nor do they reflect the relatively diverse and multidimensional political views of individual Americans. Instead, the major American political parties are best understood as coalitions of interest groups that work together to further one another’s agendas.

What’s distinctive about both the Sanders and Ron Paul coalitions is that they consist mostly of people who do not feel fully at home in the two-party system but are not part of historically underprivileged groups. On the whole, young voters lack political influence. But a young black voter might feel more comfortable within the Democratic coalition, which black political leaders have embraced, while a young evangelical voter might see herself as part of a wave of religious conservatives who long ago found a place within the GOP.

A young, secular white voter might not have a natural partisan identity, however, while surrounded by relatively successful peers. In part, then, the “revolutions” that both Sanders and Paul speak of are revolutions of rising expectations. We’ll explore this theme more fully in Part II of the series, and consider some alternative explanations for Sanders’s success.

The highlighted portion is something I've come across before:  this isn't a revolution across class lines, it's more the discontent of the middle class.  Not to disparage the middle class per se, but the "revolution" Bernie offers is simply what the country had when I was in college:  cheap tuition (at $4 an hour it was cheap even in the '70's) and job opportunities when you graduated (although we graduated into the '80's, when the economy was slowing down for the first of many booms and busts unknown since the end of the Great Depression.  New Deal Programs were already being undone, a process that accelerated as we stepped on the economic rollercoaster).  It's not a revolution Bernie Sanders offers; it's a nostalgia trip.  It's a different version of trickle down:  if we just make the middle class secure, everyone will be happy.

But the experience of the New Deal was actually that the working class prospered, which made the economy prosper.  The Great Depression ended with war-time spending, but that money wasn't into middle-management jobs and professional salaries:  it went to manufacturing and construction and mining, and from that middle-management was needed.  The money flowed up from the bottom, not up and down from the middle.  What Bernie promises is to make the middle-class middle-class again.  But even if he had a Democratic House and Senate he couldn't do it; not without upending decades of economic theory and introducing massive government spending that would return the country to what it will never have again:  a manufacturing and technological base that dominated the world the way America did after World War II, when so much of the world that could compete with us lay in shambles.

There was a reason "Made in Japan" meant "junk" even into my childhood.  But there's also a reason it never will again.

I learned in seminary the simple wisdom of the prophets:  that if the king took care of the poor, all would be well with everyone.  Money that bubbles up, to use a water metaphor, is better for the oikonomos than money that trickles down, because "trickle down" is always, as the feller said, what you get from the horse after the horse gets the oats.

We do need a change of economic theory, as well as a change of heart (what else would it be if we suddenly cared for the poor as if their lives mattered to all of us?).  And it needs to start somewhere.  But if Nate Silver is right and the revolution Bernie Sanders is leading is a "revolution[ ] of rising expectations," the real change that is needed won't start there.

Even the prophets knew that promises were one thing, but production was what mattered.  They also understood that society was built from the bottom up, not from the top down.  Until we learn that lesson again, we will continue to be disappointed with the outcome of our hopes and dreams.