ReligiousLeftLaw.com

The Speech Claim of 303 Creative LL

Yesterday, the Court heard oral arguments in 303 Creative LL v. Elonis. Lorie Smith is a web designer doing business as 303 Creative LL.

Smith would like to provide her services for heterosexual weddings, but as a matter of religious conscience feels that she cannot provide the same services for same sex weddings. Colorado forbids discrimination on the basis of sexual orientation and interprets its statute to include businesses that provide services for heterosexual marriages but refuse to provide services for same sex marriages. Accordingly, 303 Creative LL sought a declaratory judgment that the law was unconstitutional on free speech and freedom of religion grounds. The Court agreed to hear the case on free speech grounds; it did not agree to hear the freedom of religion issue.  

Creative argued that designing a website is free speech. Colorado argued that Smith was proposing to engage in discriminatory commerce, a form of conduct. But the case should not turn on conclusory labels. Designing a web page is 100% conduct and 100% speech, and even if it is primarily speech, substantially more is needed to conclude that Colorado has violated the Constitution.

There is no absolute right to remain silent in the face of a government command. Consider, for example, police commands to speak in a lineup, compelled testimony, and police commands to show identification. This should include web design.

But the government cannot compel speech content that contradicts the conscience of an individual (such as a mandatory flag salute); (such as the live free or die slogan on license plate) (forced courier of a government message that contradicts the beliefs of an individual).

The web designer cannot show in this case that she will be forced to produce content with which she disagrees. On that point, the case is bereft of needed facts. To be sure, there are circumstances where a person is such an important part of the wedding that human dignity would be violated by compulsory participation even if the person is not forced to utter content with which the person disagrees. Consider a minister or a singer forced to say prayers or sing songs at a wedding even if the prayers or songs do not have content that is opposed by the minister or singer. Surely, a web designer is not an important part of a wedding.

This does not mean that I expect the conservative majority to find for Colorado. Rather I expect the Court to screw up free speech doctrine when it could and should have had the integrity to wrestle with the freedom of religion issue.

On the speech issue, see generally Steven H. Shiffrin, What is Wrong with Compelled Speech?, 29 J.L. & Pol. 499 (2014).

Abortion and the Judicial Role

The Supreme Court’s abortion decision exhibits a fundamental misunderstanding of the judicial role and our system of government. First, the majority primarily relies on a case involving assisted suicide which says that liberty rights must be “deeply rooted in the Nation’s history and tradition” (Washington v. Glucksberg) and proceeds to devote page after page showing that abortion was a criminal offence at various stages of our history.

What this amateur foray into abortion history misses, as the majority well knows, is that the Court has specifically denied that rights must be deeply rooted in the Nation’s history and tradition. In upholding same sex marriage, Obergefell v. Hodges, disagreed with the Glucksberg test and pointedly observed that “rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” See also Lawrence v. Texas (same sex relations constitutionally protected). Griswold v. Connecticut (right to use contraceptives constitutionally protected).

The Court says that the rights to use contraceptives, to engage in same sex relations, and to same sex marriage are not in danger because they do not involve pre-natal life. This is a puzzling claim. The majority claims to be neutral about fetal life and abortion. It is not at all clear how neutrality is compatible with the majority’s claim. More important, the deeply rooted language is out of the bag. Why would anyone believe the Justices would not trot it out again?

Judges are just referees, say the conservatives, not policymakers. And there the Court steps into outer darkness. I am reminded of Friedrich Nietzsche dictum: “To have a system is to lack integrity.” A system in which judges do not make policy decisions is either a prescription for outdated stupidity (e.g., giving excessive weight to a history of racism or sexism) or an occasion for cheating on the system. Take my word for it. Prominent areas of conservative cheating include cases involving the First, Second, and Eleventh amendments.

Moreover, the conservatives are excessively romantic about the legislative process. All too often legislative decisions are made because money talks. So far as I am aware, the judicial process proceeds without legalized bribery. And elections are often personality contests where voters cannot focus on single issues in ways that judges can.

Finally, the conservatives apparently believe that wise political judgment and partisan political preferences are the same thing. In the area of abortion, the liberals refer to the right of privacy, or the right of bodily autonomy, or a general liberty right. This allows liberals to formulate outcomes that are consistent with fundamental human needs.

One of the conservative responses tells it all: “Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.” Really? Is there anyone who thinks that the liberals would create such rights? Of course not. Judges exercise judgment. They are not just calling balls and strikes. Judicial policy making is not foreign to the Constitution. Indeed, Justice Felix Frankfurter was closer to the mark “Five justices of the Supreme Court are molders of policy rather than impersonal vehicles of revealed truth.”

Moral Values

In 1956, Oxford University planned to give an honorary degree to Harry Truman. Elizabeth Anscombe dissented. Truman authorized the dropping of nuclear weapons on Hiroshima and Nagasaki. Anscombe did not deny that Truman’s decision saved lives by speeding up the end of the war. She denied that the end justified the means. We should think of this when we condemn other war crimes. Our country is not pure.

I get this example from the Wall Street Journal’s book review section this past weekend.  Heather McAlpin reviewed Metaphysical Animals: How Four Women Brought Philosophy Back to Life by Clare Mac Cumhaill & Rachael Wiseman and The Women Are Up to Something by Benjamin Lipscomb. The four women are Anscombe, Philippa Foote, Mary Midgely, and Iris Murdoch.  These four women wrote against the then dominant strain in moral philosophy, namely the view that moral values were subjective and not objective. It is a wonderful review. I came away with the impression that both books were worth reading. To my mind, the mystery is how philosophy could have sunk so low that it needed to be brought back to life.

Taryn Mattice's Last Sermon as Cornell Chaplain

Taryn Mattice has served as a Cornell Chaplain for nearly three decades. She has been supported by five mainline churches in Ithaca. Months ago she announced her retirement. She richly deserves to do so, but it is sad to see her go. In addition to being an outstanding preacher: erudite, insightful, and down to earth, she has been a spiritual model and has led the students on numerous social justice trips through the years.

Here is her last sermon:

Last Sermon May 8, 2022    2 Thessalonians 5

         What I’m about to read you is the very end of Paul’s first letter to the church of Thessaloniki. You’ll see he takes his sweet time, signing off. Goodbyes are hard.

         “Finally, my sisters and brothers, he says, “Be at peace among yourselves. And we urge you, beloved, to admonish the idlers, encourage the fainthearted, help the weak, be patient with all of them. See that none of you repays evil for evil, but always seek to do good to one another and to all. Rejoice always, pray without ceasing, give thanks in all circumstances, for this is the will of God in Christ for you. Do not quench the Spirit. Do not despise the words of the prophets, but test everything; hold fast to what is good; abstain from every form of evil. May the God of peace himself sanctify you entirely, and may your spirit and soul and body be kept sound and blameless at the coming of our Lord Jesus Christ. The one who calls you is faithful, and he will do this.”

         In the academic literature, this ending of Paul’s letter is called his “shotgun paraenesis,” because he’s quickly firing off one round of imperatives after another. Maybe he’s running out of papyrus, and writing in a cramped hand up the side, or the mail carrier is coming and he’s rushing to finish, just barking out “Rejoice always! Be patient! Floss!

         I’m going to take Paul’s words here as permission to say important things in short sentences. And I hope you will too. When you say goodbye to a friend for the summer, or when those of you who are graduating take off in opposite directions . . .  your last words to each other don’t have to be nothingburgers. (low voice) “Hey, take it easy.” Risk saying something important. Even if its quick.

         So here goes. My shotgun paraenesis.

          “Find things in your life that will make you cry.” I’ve got a little more papyrus here, so I’ll explain. A student once told me that he hadn’t cried since he was 10, “so that means I must be pretty happy, right?” “No,” I answered, “most truly happy people cry a lot. They find all kinds of things that make them weep. They read sad novels, watch hard movies. They’re fully in touch with the pain in their own lives and they take on some of the pain of the world. An alum told me she volunteers to go to court once a month to be an advocate for children in abuse cases. She just sits outside a judge’s chambers with them, armed with juice boxes and snacks and something for them to cuddle. “I have to hold it together while I’m there,” she says, “but I cry for two days after. . . It’s the best thing I’ve ever done.”

         You know how good you feel when you’re physically in shape? (I kinda remember.) So it is when you use your heart often – it’s a muscle you know, and you feel better when you’re using it.

         Jesus wept. And what sets Yahweh apart from a philosopher’s concept of God, is this incredible . . . pathos. Jealousy, anger, hurt, grief. All of it. The God of the scriptures is not the God of the Deists.  Yahweh feels stuff.

         All right. “Seek adventure.” You’re gonna get that on at least one graduation card, but let me explain what I mean. That thrill seeking impulse is strong in some people, maybe some of you – skydiving, rock climbing over cliffs, even grabbing microphones before crowds,– I think adrenaline junkies have  a spiritual gift, though God knows the church does most everything in its power to discourage any association of risk-taking with faith-living.  Look at how sedate we try to keep things around here. Your parents probably don’t love your adrenaline seeking behavior much either. But really.

         Barbara Brown Taylor, who is an Episcopal priest, tells a story about her husband, who, though he is a Christian, took up with a group of Native American Sun Dancers. He returned home after a week with them of fasting, praying and dancing, followed by two days spent alone and naked in the woods with God. When he got off the plane back home, badly sunburned and 10 pounds lighter she says “his face leaked light. And he turned to me and said, ‘you make church too easy.”  Find some adventure in your life with God.

         Three. I’m going to borrow this one from Paul. Pray always. And you know, I keep saying I haven’t been as helpful to you with this as I wish I’d been. I’m still working on it myself.  But here’s what I know. A lot of what we learn when we pray is how to be quiet. And we need to stop thinking that a relationship is constituted only by language. The closer we get to other people, the better our friendships are, the more silence those relationships contain. The people we talk to all the time are probably the people we don’t know well and don’t trust so much. So it is with God. You want to get to the point where you can just hang out together. My friend Ed always got to church an hour before the service began, just to sit in the silence with God. He loved it. And that is the fruit of a lifetime of prayer. Learning to pray is a lifelong process. And friendship with God the goal, not the starting point.

         Another one:  Fear not. Which you know is all over the Bible. But as I did on Easter, I want to walk it back a little. On Easter you heard Matthew’s story – about the women who left the tomb quickly with fear and great joy. And I told you then that Matthew seemed to be saying something about the absolute likelihood that these two things will travel together. So welcome a little Fear – just don’t let it get the upper hand.

         See, the Bible says perfect love casts out fear – but my love has yet to be perfected, so I think what happens instead is that love and joy just have to refuse to let fear take up all the space. “Scoot over,” they need to shout. “We’re coming along!” Then fear has no choice but to quit hogging all the seats. I love the way Elizabeth Gilbert talks about fear. She says she doesn’t try to kill off her fear or go to war against it.  Instead she makes space for it. “In fact,” she writes, “I cordially invite fear to come along with me everywhere I go. I even have a welcoming speech prepared for fear, which I deliver right before embarking on any new project or big adventure.” In her speech she uses the word “creativity,” but we could insert joy, or hope, or love. So her welcoming speech goes like this:  “Dearest fear, Hope and I are about to go on a road trip together. I understand you’ll be joining us, because you always do. . .  there’s plenty of room in this vehicle for all of us, so make yourself at home, but understand this:  Hope and I are the only ones who will be making any decisions along the way. I recognize and respect that you are a part of this family, and so I will never exclude you from our activities, but still – your suggestions will never be followed. You’re allowed to have a seat, and you’re allowed to have a voice – but you are not allowed to have a vote. You’re not allowed to touch the road maps,  you’re not allowed to fiddle with the temperature. Dude, you’re not even allowed to touch the radio. But above all else, my dear old familiar friend, you are absolutely forbidden to drive.”

         Look. It feels like I’ve spent the better part of the last few years thinking that some of us should give a little more notice, a little more credit, to the voice of fear.

         See, as probably one of the few Baby Boomers you actually know, I want to apologize on behalf of my entire generation. We’ve left you a mess. The planet is heaving. Our institutions – churches, schools, government – are starved for attention. There is just no way this next period of time is going to be easy-breezy. And yes, I know nothing has ever been perfect and still there are still beautiful, funny, wonderful things happening every day – but I can’t shake the feeling that more is going to be asked of you than has been asked of a generation in a very long time. And its going to demand a kind of seriousness my generation kept avoiding.

         Right after January 6 last year, after the insurrection, I was in a room with clergy, and clergy? Well we were mostly saying what you’d expect us to say. We have a crisis of unity, we said. We really needed to understand more of where other people were coming from, we need to love more. And all of that is right. But to this day I carry some discomfort. What I was missing in that room was some apprehension of the depth of our situation. Which I understand to be that lies are winning. In another place Paul warned, “There will be times when people will no longer listen and respond to healing words of truth because they have become selfish and proud. They will seek out teachers with soothing words that line up with their desires, saying just what they want to hear. They will close their ears to the truth.”  In Myanmar and Ethiopia right now – astonishing violence is taking place partially fueled by lies spread on social media. Let’s just say I’m not confident that the same phenomenon that led millions of Americans not to get vaccinated doesn’t threaten us in more dire ways as well. It seems to me that the Christian church needs to continue to preach about love – our standard, but it also better get fierce about telling  and insisting on the truth.

         Whenever we tune into a problem in some particular way – we are sometimes tuning in on a frequency we developed in childhood, in our families. What makes you respond to cruelty and makes me hypervigilant about lies – is likely what we’ve lived.

         But I am also a student of history. All that academic work I did years ago on the history of the Holocaust, on the cultural developments of the 1930s in Europe that led every institution – schools, churches, governments – to lose their minds. Their purpose. Ringing in my ears is Dietrich Bonhoeffer’s line– he was a Lutheran minister in Germany -- "The failure of reasonable people is appalling; they cannot manage to see either the abyss of evil or the abyss of holiness."

         What frustrated – that’s not a strong enough word – incensed! – this man who was finally executed by the Nazis – was the failure of good church-going Germans to comprehend both the depth of the evil they faced, or the possibility of holiness, of spiritual strength and courage in the face of it. He was talking about that vast middle of German society that could not see how bad things were, couldn’t even imagine it, nor imagine the possibilities of being God’s people, who with God’s help can defy evil. They mostly wanted to muddle along with their lives until, well until they couldn’t muddle anymore, because bombs were raining down on them and it was too late to do anything about it.  

         I have my issues with the word “evil,” but if it helps basically decent people come to grips with selfishness and dishonesty that is worse than they can imagine– maybe its useful.

         So I guess that’s where I want to leave us today. With my encouragement that you find it in you to name the abyss – the rot, the ugliness, the lies, the sin --to use our word – that threaten God’s good world. And that you will also – be impatient with shallow religion,  but push harder to identify and cultivate holiness – in yourself, and in our churches.

         Well that’s not EXACTLY where I want to leave you. At the very, very end of Paul’s letter he gets personal. Not as personal as he does in other letters, but he does say, “Pray for us.” He asks for their prayers.  This is not the Paul who swaggers, this is the Paul who is just as needy as his people are, and admitting it. And then he says, “Greet all the brothers and sisters with a holy kiss.”  Whatever that was. But I take it to mean he signed off leaving them to each other’s care, intending that intimacy and real affection be cultivated among them.

         And so is my hope for you. You who are remaining. That when a new chaplain arrives in the fall that person will find a little community of people intent on friendship between them, and with whoever else walks through those doors. You don’t have to aim for bigness to grow, you know, you just have to want friends. And I pray that chaplain will simply be folded in among you. Because for all of these years, that friendship with you and your predecessors is what I am left to treasure. All the remaining days of my life. Amen.

 

Replacement Theory

Recently on MSNBC Charles Blow made an important distinction about "replacement" theory. He remarked that the demographics are changing in the U.S. (the proportion of people of color is increasing though not so much the proportion of black people) and will continue to do so. This change threatens the identity of many white people. But the conspiracy claims of replacement theorists are utterly made up. The notions of a Jewish conspiracy with its companion white supremacy themes is altogether at odds with basic notions of constitutional equality and democracy. Finally, I find it puzzling that illegal immigration is touted by the right as part of the "conspiracy." Undocumented immigrants do not vote and the primary political actor pressing for more immigration is the corporate employer whose motivation is money, not immigrant voting. But why should I be puzzled? We are not living in the age of Reason.

 

 

 

 

 

 

 

 

 

 

Peggy Noonan's Flawed Saturday Column

In her Saturday column, Peggy Noonan scolded President Biden for unfinished sentences, for an unconvincing retreat from his prior comparisons of those who were opposed to voting rights legislation with Southern racists, for his handling of Afghanistan, and for being old and tired. She maintained that Biden’s new strategy of going over the heads of Congress to communicate with the people will be a failure.

She said: “He is misdiagnosing his problem. It isn’t that his stands and decisions haven’t been fully understood and will be embraced if comprehended more fully. It’s that his stands and decisions the past year were basically understood and disliked. It’s not a communications problem, it’s a substance problem. It would be better if he spent his second year readjusting his positions.”

Noonan’s column is embarrassing. First, it is misdescribes Biden’s strategy. Second, her claim about the popular reception of Biden’s policies is wholly at odds with the evidence.

Part of Biden’s strategy is to take the large pieces of legislation and break them up into smaller achievable pieces. He made this clear at the press conference. Where was Peggy Noonan?

When he goes to the public, he plans to criticize Mitch McConnell and the Republicans for their failure to offer a program of any kind. He asked, “What is Mitch for?” Peggy Noonan’s response? Silence.

Finally, where is the evidence for her claim that his stands were understood and disliked? Whether the issue is voting rights (including the filibuster) or the Build Back Better program), Biden’s policies have enjoyed broad popular support. https://www.nbcnews.com/politics/elections/new-polls-suggest-broad-support-democrats-voting-rights-bills-n1277837 ; https://www.msnbc.com/rachel-maddow-show/gop-fails-dent-popularity-biden-s-build-back-better-plan-n1285656 (discussing Monmouth polls). Yes, his retreat from Afghanistan was badly bungled. But he’s not going on the road to talk about Afghanistan. He’s going on the road to build even more support for voting rights and parts of the build back better program, to energize the base for the midterms, and to put the let’s-do-nothing-Republicans on the defensive.  

Even if Putin sends troops into Ukraine and Biden cannot go on the road, it is way too early for the Republicans to break out the bubbly. The Republicans have much to fear in the coming months: The January 6^th Report, the forthcoming indictments of Republican leaders, the blizzard of lawsuits against the states’ voting restrictions, restrictions that would have a deliberate disproportionate impact on people of color, the possibility that Trump will be further disgraced by criminal and civil actions against him and his family, and the public recognition that the Supreme Court has become too extreme to command institutional respect.

Justice Department and the Next Election

Many are criticizing the Justice Department for not indicting those political leaders who had a role in bringing about the January 6^th insurrection. Perhaps, the Department does not want to interfere with the 1/6 Committee and believes time is on its side. Perhaps the Department is already investigating and has managed to avoid leaks.

My hope is this: There has been widespread reporting of Republican plans to steal the future elections by installing ideologues to make decisions about which votes to count and which not. In other words, when Donald Trump or his ilk asks a local official to come up with a few thousand extra non-existent votes, they will already have installed a willing stooge. You might think that no crime has yet been committed because the midterm election and the next Presidential election has yet to take place. But, if the reporting is correct, a crime has already taken place. A conspiracy to commit an illegal act against the United States is already a crime if there is an agreement to do so and an overt act in furtherance of the conspiracy. The Justice Department should be investigating this. To my mind, it is the most important threat to our democracy and the conspiracy should be stopped in its tracks.

Is There a Constitutional Right Not to Wear a Mask?

Millions of our fellow citizens believe there is a fundamental constitutional right not to wear a mask. If there is such a right, it should come as a surprise to anyone who has gone to law school. If the foes of masks are right, they will need to explain why the military draft was not stopped in its constitutional tracks. The conservatives have long insisted that constitutional rights appear in the text of the Constitution or are “deeply rooted in the nation’s tradition” and they typically insist that liberty rights be carefully defined and identified by the specific facts, not by anything as vague as liberty or freedom. That is why the conservatives maintain there is no right to an abortion. Neither “the right not to wear a mask,” nor the right to an abortion is deeply rooted in the nation’s tradition.

Other justices over the years have not looked exclusively or even primarily to tradition to identify unenumerated rights. They have not shied away from using broad concepts such as privacy to assist in identifying constitutional rights. They have drawn analogies to other rights in the Constitution. Indeed, they have looked to see whether the conduct in question is important for a flourishing life. From that perspective, women have the right make choices regarding childbirth; the right to use contraceptives is settled constitutional law; same sex marriage is constitutionally protected. Tradition be damned.

From either perspective, no tradition in our country and no liberty right countenances a right to expose other citizens to disease. Indeed, government has a compelling state interest in requiring its citizens to wear masks in appropriate circumstances. Liberty has always been a qualified right, and it always will be.

The Do Nothing Republicans and the Liberal Media

Gerald Seib, who writes the Capital column for the Wall Street Journal, has an excellent piece on polarization in Saturday’s paper. Nonetheless, I was taken aback by this statement: “Meantime, Republicans, having been pushed entirely into the minority, did not have to bear responsibility for either what transpired or what did not get done.” Instead, even liberal media blame Joe Manchin, Kirstin Sinema, Joe Biden, and the Democrats generally for what has not gotten done.

Apparently, the polls show that the Republicans gain by doing nothing. They offer no alternatives. They just say no, and they are proud to do so. Most of them even bite their tongues about the storm on the capital. They are do-nothings, cowards, moral lepers – who apparently will get away with it. The liberal media has chastised the Republicans for their failure to condemn all manner of sins – from sedition to racism – but they have cast only a passing glance at the Republican’s failure to offer concrete legislative proposals. Maybe it is more interesting to focus each night on Joe Manchin; maybe it’s a story that continues to sell; but Joe Manchin is not a moral leper. To find the moral lepers, you have to look across the aisle.

Judicial Politics and Roe

Justice Felix Frankfurter once said that Supreme Court justices are molders of policy rather than impersonal vehicles of revealed truth. He was right. So, when members of the Supreme Court give speeches asserting that they are not political, they speak only partial truths. When Chief Justice Roberts said a Supreme Court justice was like an umpire calling balls and strikes, he was way off the mark. To borrow a locution Fred Schauer used in a different context, it is like saying a butterfly is an adjusted camel.

This does not mean that there are no limits on the Court. Two of them are crucial. First, it is illegitimate for the Court to make decisions based on which political party would be benefited – as the Court did in Bush v. Gore. Second, although the Court can overrule precedent in an appropriate case, depending on the circumstances there can be a heavy burden against doing so. In my view, the burden is insurmountable regarding the right recognized in Roe and Casey wholly apart from the merits of the decisions. First, several of the justices who will vote to make Roe meaningless testified under oath to the Senate in a way that indicated they would respect Roe. To move away from that testimony would be indefensible. Second, the Court in Casey reaffirmed the central holding of Roe in a thorough review of the question when to respect a precedent and when not.  There is more, but overturning Roe – a decision backed at the time by a Republican majority of justices – will leave a “stench” that no amount of pious speeches will be able to overcome.

Abortion and the Democrat's Reading of the Constitution

In listening to the oral arguments this week,  I could not help but think how different things would be if the Democrats controlled the Court. Most obviously, Roe would be settled law. Furthermore, the right of poor women to secure government funding for an abortion would be put in place.

Somewhat less obvious, the notion that a finding of discrimination requires discriminatory intent would be cast aside. Instead, at the very least, government action resulting in disparate impact on the basis of race would be unconstitutional in the absence of a strong justification. If a state can outlaw abortion, the harm will fall disproportionately on the basis of race, sex, and class. Forcing a woman to carry a child to term is itself problematic, but there are strong grounds to doubt that the interests of poor black women are properly valued in the “great state” of Mississippi.

To narrow the point, Washington v. Davis (requiring a showing of discriminatory intent) was wrong the day it was decided. It is too easily disguised, and, as Ken Karst argued, even good judges shy from branding an action as being stained by discriminatory intent.

Residency, Immigrant Voting, Jamie Raskin, and Ken Karst

New York City is likely to permit 800,000 non-citizens to vote in local elections. These individuals have permanent legal resident status and pay taxes. Few Republicans would approve of this. An op-ed carried by Fox claims that it shows the depravity and evil of the Democratic Party, and states that immigrants who have citizen status with “communist” China will be voting.

I would note that the 14^th Amendment’s protections of due process and equal protection extends beyond citizens and protects “persons” regardless of citizen status. On Facebook, Mark Tushnet helpfully reports that Jamie Raskin's tenure article at American University was about this issue. (See

• Jamin Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, U. Pa. L. Rev. (Apr. 1993).

I am reminded of an article by Ken Karst who argued in a Foreword to the Harvard Law Review for the principle of “equal citizenship” that generous protections should be found in the Amendment for citizens and for non-citizens including the clause that protects the privileges and immunities of citizenship. It was influential, but the courts have not lived up to his generous approach. And, of course, the current Court is intent on cutting back on many of the Amendment’s protections. 

In my first year of teaching, I would carry many bound volumes home with articles discussing what I needed for the next day’s class session. Virtually every time the most helpful article was written by the guy down the hall – a friend and mentor – Ken Karst.

Peggy Noonan and "Woke" Education

Peggy Noonan’s column Saturday argued that the Democrats need to face down the “Woke.” She refers to the woke education agenda and the woke regime. She claims that her bias is that there should be “two strong parties duking it out.” She does not refer in this column to the departure from support of democracy by the Republicans. The Merriam Webster dictionary defines woke as aware of and actively attentive to important facts and issues (especially issues of racial and social justice). But Noonan defines it differently and claims that the teachers unions and the school boards (who she says are stacked with candidates backed by teachers) adhere to her characterization of woke:

• According to her the woke regime primarily stems from a charge that racial evil was systematically and deliberately embedded long ago by the white patriarchy, in the heart of all American life. Comment: The first part of the sentence surely applies to slavery, not to mention segregation in the south and north (see the work of historian Leon Litwack). Comment 2 “All of American life” Who teaches this?
• “This ugliness thrives undiminished, which justifies all present attempts at eradication.” Comment: Undiminished? “All present attempts” Who teaches this?
• “We are not persons with souls. We are part of identity groups marked by specific traits. We hate each other and must fight each other.’’ [Soul is probably meant by her as a religious term. If so, the denial of a soul cannot constitutionally be taught in the schools because of the Establishment Clause. Shiffrin, The Religious Left and Church/State Relations. It would be the very rare teacher who taught that we do not have souls whatever their personal beliefs. As to the last sentence of the quotation, does she seriously believe this is taught in the public schools? Does she seriously believe that a Democratic politician would have the slightest trouble condemning this as she intimates later in her column.

Noonan leaps over a number of other unilluminating characterizations to this piece of (sorry to say it) ignorance. She says that public-education is a cartel. But there are 50 states and 13 thousand public school districts! American public education is not standardized. Of course, some things are taught everywhere (e.g., don’t take drugs, alas too many students pay little attention), but New York city education is not upstate New York education and both are internally and wildly diverse. Yes, some stupid things about race have been said in and out of schools. Anyone who thinks Lincoln’s statue should be taken down is unworthy of public office and the Democrats should say so. But Noonan’s column suggesting that woke education (as she defines it) dominates the teacher unions or the school boards is as specious as the claim (which she would not make) that the last election was stolen.

For too many years, the Republicans have found an issue that appeals to those with racial prejudice. The Democrats need to publicly acknowledge that the education of our children is a vital and controversial issue. They also need to condemn the Republican emphasis on a specious form of woke education: both its inaccuracy and its motivation. In our public education, decisions are put in the hands of school boards. I was President of the Ithaca City School District Board. Parents appeared before our Board at every meeting. We responded as we thought best: sometimes parents disagreed, but we listened and learned.

I was initially told not to run because (“It’s a thankless job”). It is not. Scores of parents stopped me in the grocery store (this was pre-pandemic) to thank me and to argue in a civil way on behalf of their children. I knew many at Cornell, but few off the east hill (where Cornell sits). That all changed when I joined the school board. Our Board was politically divided in a number of ways. It was not always sunny, but I would encourage people to run for a school board.

Peggy Noonan is certainly not a racist. And her separationist argument is surely right that the Democrats should have no part the kind of woke education she describes. Of course, the Democrats should fight against racial injustice.

Nonetheless, it is shocking to read her fictional account of unions and school boards. A major problem with public education is underfunding; the problem with the teaching of history is not woke education as she defines it; it is the failure to teach history at all in so many districts across the country. In many districts, the teaching of reading and writing is very poor. I would encourage Noonan to focus on the real problems of education or to beat a drum about the threat to the two party system and to our shared values presented by her party, the party that threatens democracy.

Whoever runs the Bureau of Prisons Should Be Called to Account If this is True

By John Kiriakou
Special to Consortium News

Drone whistleblower Daniel Hale was sent on Sunday to the notorious Communications Management Unit (CMU) at the maximum-security U.S. Penitentiary (USP) at Marion, Illinois to serve a 45-month sentence, rather than to the low-security prison at Butner, North Carolina, where federal Judge Liam O’Grady had recommendedhe go. 

Butner is a prison hospital complex, and O’Grady was cognizant of Daniel’s need for psychological therapy to deal with post traumatic stress disorder from his time as a U.S. Air Force drone operator. 

USP Marion, on the other hand, is a former “Supermax” prison that was built in the early 1960s as a replacement for Alcatraz. It was converted into a CMU to keep terrorists from being in contact with the media. The Bureau of Prisons, which apparently knows better than a federal judge, decided that the American public must be protected from Daniel Hale’s dangerous ideas, like the notion that we shouldn’t murder innocent civilians with drones.

The F Test

In the late 1960's and early 1970's I was coaching debate and teaching a variety of courses including Argumentation (also The Rhetoric of Black America, Group Discussion, Beginning Public Speaking, and Persuasion)  at San Fernando Valley State College - now CSU at Northridge. I became interested in Adorno's discussion of the authoritarian personality (discussed in my last post). So far as I am aware there was no human subjects committee and I had no empirical training (still do not).  

I decided to embark on an experiment. I had my students fill out Adorno's F test at the beginning of the class without their name and without an explanation of what the test was about. The class assignment was to give two well researched speeches (accompanied by outlines) arguing for and against the same proposition. At the end of the class, the students took the test again (unsigned and unexplained again). In the two classes I did this (not in the same year), there was a significant class shift away from the authoritarian personality.

The methodology of the test has been criticized; it surely could have been better constructed. Seana Shiffrin has argued that actors tend to take on aspects of roles they play. Here the change could be explained by the times the test was administered, by the students catching on to the test's purpose and the like. But I think the act of arguing both sides of the same question helps to undermine the authoritarian personality. At the same time I wonder what the effect of law school is on the personality of a law student - understanding it will have various effects - still there may be a general direction for most.

Trump and Fascism

The Summer issue of Dissent contains an article by Udi Greenberg, an Associate Professor of European History at Dartmouth. A principal theme of the article is to ask whether it was accurate or useful to pin the label fascist on Donald Trump. Alexandria Ocasio-Cortez and Madeline Albright thought so, and so did Timothy Snyder’s On Tyranny. Obviously, there were similarities (racism, sexism, plutocracy, disrespect for law). Among the differences between fascism and Trump, Greenberg argues is that fascism was strongly supported by impoverished youth; Trump was most strongly supported by the propertied old, anxious to preserve their privileges. Fascism sought imperial military mobilization; Trump was a draft dodger who claimed to reject military adventures.

I want to underscore an aspect of Trumpist appeal that was shared by Hitler. Here, the Republican leaders are irrelevant. They can be believers or opportunists. I am focusing on the followers. The appeal I have in mind involves aspects of the authoritarian personality (See Adorno’s F scale). I do not claim it of all Republican supporters by any means.

The Republican playbook has been to play the race card and to paint the Democrats as anti-religious, socialist or lefty, elitist, anti-conventionalist softies (they portray Democrats as thinking they are too good to respect societal norms). Trump represented the anti-liberal emotional leader with the masculine strength to fight off these minorities who think they are better than law respecting white people. Yes, this does not fit with the assault on the capital. But, if the election is being stolen, revolution is thought to be appropriate – I think this fits Scalia’s vote in Bush v. Gore. 

More on the authoritarian personality soon.

When the US Lost Democratic Values Pt. 1

The most shocking political development of my lifetime has been the erosion of democratic values and the flagrant disregard of the rule of law. The Republican leaders have spat at inconvenient democratic truth (the clear loss of the election) and allowed a sexist, racist criminal to lead the party, a leader who would use the tools of power to jail his enemies.

It is hard to believe that Republican leaders really think they won the election; it is easier to believe that they think the Big Lie (coupled with racism and vote suppression) is the best path to victory in the next.

At the same time, the Democrats have played their own role in suppressing votes. For years the Democrats controlled most state legislatures and gerrymandered the Republicans. One exception was Indiana where the Republicans gerrymandered the Democrats. If the Court reversed that gerrymander, the political landscape outside Indiana would have changed enormously to the detriment of the Democrats. So, the California Democrats wrote a brief in favor of the Republicans. The story goes that Solicitor General Charles Fried refused to file a brief on behalf of the Democrats despite being asked by the RNC. He could not ask the Court to reorganize most legislatures in the same term he was asking them to overrule Roe v. Wade on states’ rights grounds. So, the RNC intervened on behalf of the Democrats. Meanwhile the NAACP had to decide whether it wanted maximum Democratic representation or Black representation at the expense of Democratic representation – at least quantitatively. So, for example, South Central Los Angeles (then virtually all Black) showed on the map as bicycle spokes going into predominantly White areas providing winning Democratic margins, but no Black representation. The NAACP went for Black representation.

I with a number of others helped represent the Democrats in California and in brief writing about Indiana's gerrymander. One of the many interested political leaders asked me and others if we had a chance to win. I told him/her we almost certainly would win. The Court would not want to get involved supervising legislative organization. The response was incredulity: “Don’t they know what’s at stake?” Of course, they did; but they also believed in the appropriate limits of the judicial process. I am not sure the Court is as principled now as it was then.

Were gerrymanders at the time moral? Another leader: “Well they have the money[no longer true]; we draw the lines. I have no problem with it.” Actually, the best argument for gerrymanders is that there is no non-political way to draw lines. In California, (despite a California provision prohibiting two drawing of lines in a decade – a provision discussed in a California AG opinion decades before – I was happy to find it in a dusty volume) legislator Sebastiani proposed an initiative calling for square boxes that would have produced a Republican gerrymander. So African-Americans in Los Angeles would have been packed into square boxes - minimizing the effect of their vote.  Jonathan Steinberg and Dan Lowenstein wrote an article showing that there is no good alternative to the gerrymander. Maybe. But I have to believe there was a lot of Democratic glee in using lines to assure the outcome of elections.

The Democrats have done much more to pave the way for the likes of Trump. Stay tuned.

from Taryn Mattice August 29, 2021 First Service John 15:9-11
On his last night with his disciples, this is what Jesus said.
As the Father has loved me, so I have loved you; abide in my love. 10 If you keep my commandments, you will abide in my love, just as I have kept my Father’s commandments and abide in his love. 11 I have said these things to you so that my joy may be in you, and that your joy may be complete.
On a fairly regular basis I need to remind myself that God’s intention for me is joy. Unburdened, true and boundless joy. I mean here is Jesus, two days before he was crucified, with Roman soldiers set to arrest him in a matter of hours, presiding over a last meal with his friends, and telling them that he means for them to know joy. Complete joy. That is why he said all the things he ever said to them. So that joy may be in them.
Its not just that we have so many other words we think of when we think of what God wants in us – duty, selflessness, obedience, responsibility, restraint --- and for some reason out of all of those words we use when we think of what God wants from us – joy seems the last one we name. And maybe the hardest one to accept.
Part of it is we think we know too much – for unbridled joy. I mean, we just came through almost 18 months of sickness and death and so much hardship for so many. Every one of us lost out on experiences we might have treasured. People lost their homes, their jobs, their loved ones --and its not over yet. As I speak a Category 4 hurricane is barreling towards New Orleans where hospitals are full of Covid patients. The decision was made not to evacuate them – because there is nowhere for them to go. Hospitals in nearby states are full too. It just doesn’t seem possible to know joy when you’re aware of so much anguish and pain.
Joy, we think, is that feeling you had when you were a small child in the ballpit at a McDonalds. Before you knew about germs. Before you knew about McDonalds.
Or maybe Joy, you think when you get older, is that fleeting sensation you have when you’re at a wedding, and the DJ has the good sense to play Donna Summer’s Last Dance, and gets the whole room up on its feet. Joy was opening that acceptance letter. A rare event.
I think I’ve finally figured out what all that is. That dancing-frenzy-ballpit-letter thing. Its what we might call uncomplicated joy. I’m from California and I get it in any large body of water. The ocean, preferably, but a big lake will do. Swimming in one gives me uncomplicated joy.
I forget about everything else. I just feel joy. My prayers of gratitude are never more keen than when I’m under water. I love it.
“Uncomplicated joy” was the term a black father used in an essay that was published in the New York Times this summer. He and his wife, he said, had been doing some careful thinking about how to raise their kids. What prompted a recent conversation, he said, was his 9 and 12 year old sons’ excitement about playing baseball this summer. But how to handle the conversations about masking and distancing. How much to tell them, and how to balance difficult decisions about safety and peril against a child’s longing to play. To be a kid, he said, to whom the experience of (pause) “uncomplicated joy” is supposed to be available.
As a black father and a religious man, it wasn’t an unfamiliar dilemma. How much and in what way to deliver “the talk,” which is both about the possibility of bad outcomes for young black men in police encounters, but also more generally, about the fact that the world will not always be a welcoming place.
“My wife and I have drifted to a bias toward joy,” he said. “Our children know much of the history of this country, but the focus is on Black triumph over suffering, not the suffering itself. I immerse them in the soul, hip-hop and gospel music that has lifted many a weary soul, when they would rather listen to Kidz Bop. I have told them of Moses and the Israelites, of Mary, Jesus’ mother and her dramatic yes to God. They know about Sojourner and her railroad and Martin and his dream. I remind them that God has looked upon their Black skin and bodies, and called it good. I am making deposit after deposit of Black joy and faith in the hope that it will be with them when the inevitable struggle comes. I do it because that is what my mother did for me.”
What his mother did for him, and what he is trying to do through his music playlist and in the stories he tells them, is introduce them to joy of a more “complicated” variety.
I don’t ever want to lose complete access to uncomplicated joy. Swimming in bodies of water, watching the Quidditch team skirmishes on the Arts Quad. I love a good wedding reception – and a cake that comes out of the oven just right. I’m not going to forgo that joy, and I’m not going to forget what to call it. Uncomplicated.
But I’m wrapping my head around this more nuanced thing because I believe Jesus wanted it for us. We can call it “complicated joy,” because yes, it is aware – but it is still Joy.
Please don’t ever forget, as I said to a student the other day, that God is not working against you. I mean, it is not God’s way to hide his will for you, and then be angry with you for not finding it. It is not God’s way to demand of you an overly cautious scrupulosity that robs you of spontaneity and freedom. That robs you of joy.
God’s will for you is joy, out of which you will be able to serve God’s purposes with a lighter touch, less need to protect your own ego, and oh yeah, more fun. Amen.

The Ministerial Exception and More

My colleague Nelson Tebbe has a brilliant article forthcoming in the Harvard Law Review. I suspect we agree on most Establishment Clause issues. We tend to disagree on free exercise issues. One area we agree on is the ministerial exception. I think that the Catholic Church should be able to confine the priesthood to males - even though I think the restriction is appalling. But suppose the Unitarian Church in downtown Ithaca discriminated against females. Although the Unitarian church has few binding doctrines, it is certainly no part of the Unitarian faith to discriminate against females; yet the ministerial exemption would allow them to do so - perhaps to avoid a governmental determination of the content of a religion or a broad conception of autonomy. Neither Nelson, nor I would extend the exception this far.

Similarly, I would rarely compel an individual to violate his or her conscience (Nelson less so), but I would give less constitutional weight to impinging on religious practices not required by conscience. I am not sure where Nelson stands on this, but it has the same worry about government establishing what a religion stands for. I would accept that cost. Consider religious fraud. The Supreme Court has ruled that an individual can be prosecuted for mail fraud when he claimed that he shook hands with Christ in St. Louis. The Court evaded the Establishment Clause issue by saying that the ruling was about intent, not about the truth of the religion. Yet no jury could fail to consider intent given the improbability of the Christ meeting with the defendant.

Starting the Culture War

In this week’s column Peggy Noonan claims that the Democrats are responsible for starting the culture war. She quotes from Kevin Drum: “If you hate cultures wars, blame liberals. Why? Liberals have moved to the left on hot button issues. Missing from her column, are any references to a number of events that really brought us to where we are today. Brown v. Board of Education upset Republicans because an Eisenhower appointed Chief Justice led the way. Lyndon Johnson launched the Civil Rights Bill of 1964 That drove a vitally important nail in the racial segregation status quo particularly since the resistance to Brown was powerful. Let us remember that Barry Goldwater carried previously Democratic Alabama, Georgia, Louisiana, Misssissipi, and South Carolina (Republicans have held the South because new black voters have joined the Democratic party causing it to move to the left and causing many whites to leave the party). The specifics of the strategy have changed from election to election, but an important part of Republican Presidential politics has been an appeal (subtle or otherwise to racist voters). Yes, the Democrats have moved to the left since 2000, but not to a point that justifies a culture war – the Republicans move to war with McConnell leading the way or winking at outrage after outrage cannot be justified by the political positions of the Democrats. Those positions do not call for the abandonment of normal constitutional politics.

 

 

 

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The American Bishops Have Betrayed Catholicism

In 2006, the American Catholic Bishops overwhelmingly approved new documents yesterday, exhorting Catholics to refrain from using artificial birth control, describing gay sex as immoral, and saying that anyone who disagrees with key church teachings should not take Communion. I read these documents and promptly left the Church. They were demanding that taking communion ratified their bigoted and indefensible views.

Their authoritarian mindset repelled me. Before I thought I could be a dissenting Catholic. No more.

Today, they have resurrected their views and injected them into American electoral politics. Pope Francis preached this month that communion “is not the reward of saints, but the bread of sinners.” His top doctrinal official, Cardinal Luis Ladaria, wrote a letter to the American bishops, warning them that the vote could “become a source of discord rather than unity within the episcopate and the larger church in the United States.” Even if the Bishops had a clue about doctrine, their approach to communion exposes that they lack empathy, love, and savvy.

Indeed, I am reminded of a statement I heard by a noted feminist. She said that if it were not a tenet of many religions, the doctrine of hell would be regarded as child abuse. Do not get me wrong, I am not anti-religious. I have always thought that William James, Hans Kung, and Charles Taylor are right. Whether God exists cannot be proven or disproven. Reasonable people have a choice to make. Do you want to believe that the universe has no meaning or would you rather live your life on the assumption that a loving God exists?

Peggy Noonan: The Bitter with the Sweet

I subscribe to the Wall Street Journal. The news reporting is excellent. The Saturday features are terrific. But I ordinarily ignore the ignominious editorial pages except for Peggy Noonan.

She is sometimes infuriating; sometimes insightful; never boring. Last week, she was infuriating and insightful. On the racial issue. She distinguished between faculty lounge Robespierres - racial radicals (apparently the Democrats) and those who will side with Senator Tim Scott (the only Republican African-American Senator) in believing that the U.S. is not a racist country and that racism is a vice. No shades of grey; no acknowledgement that Republicans have campaigned for years on coded racial appeals.

Having established herself as willfully blind to the realities of Republican politics, she proceeds in rousing rhetoric to decimate the “sage of Mar-a-Lago.” He is a “waning figure”; his unfavorable ratings are 15% higher than his favorable ratings; a majority of Republicans said they favored the party over Trump; 44% were the other way around; he is losing air like a deflated balloon from a Thanksgiving Day Parade; and my favorite line: in running in fear from him, Republican politicians “are running from a corpse.”  

With Peggy Noonan, you take the bitter with the sweet.

Mystery Book Recommendations

My daughter Seana gave me a  wonderful mystery set in Los Angeles, entitled An Old Man's Game. It is smart, funny, and richly entertaining. I am now reading the second in the series (in both Amos Parisman is the detective - Andy Weinberger is the author). So far, another winner. Highly recommended.

The Post Office: Covid? the Election?

In May of this year, I renewed my membership in the New York bar. The renewal was processed on May 27. On August 27, the Bar sent a notice confirming my renewal. I received the notice a few days after the election - more than 2 months later!

Stolen Judicial Seats

The Republicans refused to consider more than 100 judicial nominees by President Barack Obama, including 19 Court of Appeals nominees and the nomination of Merrick Garland to the Supreme Court. All of those seats are stolen seats. Thieves should not be rewarded.  Expand the federal courts.

The above is from my cousin Brian Shiffrin

My suggestion would be the addition of two seats for each stolen judge to discourage future thefts.

Election Interference

Ordinarily the Justice Department prosecutes those who interfere with or threaten voters. This year there is a worry that the Justice Department might abdicate its duties. It is time to recall that the Manner of holding elections is first reserved to the Legislatures of the several states (subject to Congressional override). Anyone interfering with the prescribed manner of elections could be subject to criminal prosecution if the legislature saw fit 

No More Debates

Donald Trump refused to abide by the rules he promised to keep in the first Presidential debate. There is no reason to believe he will now respect his promises. Joe Biden should seriously consider refusing to engage in future debates, or at least moderators should cut off Trump's mike. Failing that Biden should leave the stage.

Jonathan Turley Unfairly Attacks the Cornell Law School

Professor Jonathan Turley has recently referred to the rapid loss of free speech values on campuses across the United States with special emphasis on Cornell. His post discussing this contains inaccurate and misconceived claims. https://jonathanturley.org/2020/06/12/cornell-professors-declare-informed-commentary-criticizing-the-protests-as-racism/#more-158282

The impetus for his broad attack involves the writings of William Jacobson and criticism thereof. William Jacobson is a securities law clinical professor at the Cornell Law School who holds conservative views that to my mind are over the top. He says, “You send your kids to public schools and colleges, where they are taught from their earliest years that America and capitalism are the sources of evil in the world . . . while socialist and communist systems are more equal and fair.” https://legalinsurrection.com/2020/06/the-bloodletting-and-wilding-is-part-of-an-agenda-to-tear-down-the-country/(6/3/20). In fact, what distinguishes public schools in our federal system is the diversity of messages and values that are reflected in our great country. You would have to look long and hard to find public schools teaching that socialism and communism are more equal and fair than the American system of government. If they exist (I doubt it), they are few and far between. Even in American colleges, the number of communist professors is vanishingly small. 

So too, Jacobson steps far away from reality when he writes that, “Concern for black lives, and all lives, is important. But that is not the agenda of the Black Lives Matter movement, they seek to tear down our society to achieve their marxist goals . . . .  https://legalinsurrection.com/2020/06/reminder-hands-up-dont-shoot-is-a-fabricated-narrative-from-the-michael-brown-case/(6/4/20).

Although the letter was written sometime earlier, on June 9, 21 members of the Cornell Clinical Law Faculty, writing in their individual capacity, published a letter in the school newspaper: “We are … outraged by commentators, some of them attached to Ivy League Institutions, who are leading a smear campaign against Black Lives Matter. . . . These commentators express rage over the sporadic looting that has taken place amidst the largely peaceful protests, calling for organized manhunts to track down those responsible. Theirs is a form of racism that gives cover to those police who use their batons and tear gas and rubber bullets and fists to silence and maim their critics.. . . These commentators are the defenders of institutionalized racism and violence. They are entitled to their viewpoints. We do not name them, so as to deprive them of a larger platform for their racist speech.”

One can see how Professor Jacobson’s claim about the “Marxist” goals of the Black Lives Matters Movement can be construed as part of a smear campaign. And that smear campaign gives some cover to police brutality, as do other claims he makes about “false narratives” concerning police killings. It is well within the bounds of fair commentary to describe his views as defending institutionalized racism (perhaps he would deny its existence) and violence. It is also within the bounds of fair commentary to characterize the defending of institutionalized racism as a form of racist speech.

Two things to note about the clinicians’ statement: the language used by the clinicians is hard hitting, but the clinicians do not identify anyone as a racist (conscious or otherwise); and second the clinicians acknowledge that the commentators they criticize are entitled to their opinions (which is obviously a recognition of the commentators’ right to free speech).

On June 7, Cornell Law School Dean Eduardo Penalver wrote that Professor Jacobson’s broad and categorical aspersions on the goals of those protesting for justice for Black Americans do not reflect the values of Cornell Law School. At the same time, he indicated that the law school is committed to academic freedom and job security and any discipline against Professor Jacobson for his views would corrode the values of the institution. https://www.lawschool.cornell.edu/spotlights/Statement-on-Prof-William-Jacobson-and-Academic-Freedom.cfm

Turley’s commentary is not fair-minded or careful. He says that there is no mention of free speech or academic freedom in the clinicians’ letter, but the letter says that commentators are entitled to their opinions. In addition to misreading the clinicians’ letter, Professor Turley has not done his homework. He cites Jacobson as saying there was an effort to fire him. But he has not read the statement of Dean Penalver. Dean Penalver specifically indicates that Cornell is committed to academic freedom and job security and that any discipline of Professor Jacobson would be inappropriate.

Turley also mischaracterizes the clinicians’ letter when he cites it to support the view that any questioning of the BLM movement means that you are per se or presumptive racists. This is a decidedly exaggerated reading of the clinicians’ letter. First, nothing in their letter suggests that fair minded criticism of the BLM movement is a form of racist speech. Moreover,  claiming that the movement is part of a Marxist conspiracy is unworthy of civilized discourse. This gives the lie to Professor Turley’s headline. The headline suggests that the clinicians maintain in this context that “informed commentary” is racist. Turley's suggestion is that informed commentary should be sacrosanct in the university. The clinicians, however, never suppose that Jacobson’s Marxist conspiracy theories are any part of the category of “informed commentary.”

Finally, in this connection, there is a substantial difference between contending that the defense of structural racism is a form of racist speech and contending that the utterer of the speech is personally a racist.

There is more to criticize in Professor Turley’s excursion into an area where his confidence exceeds his understanding, but I want to briefly mention one. He suggests that the purpose of the clinicians’ letter was to silence Professor Jacobson. No one with the slightest awareness of the Cornell Law School would think that the clinicians who said such commentators were entitled to their opinions were out to silence Professor Jacobson, and similarly no one who knows Professor Jacobson would think that such an effort would be successful. Similarly, no one with the slightest knowledge of the Cornell Law School would have thought that Professor Jacobson’s job was ever in jeopardy or that he was at any risk for discipline.

Professor Turley has no understanding of the Cornell culture. Hopefully, he will learn. And while he is at it, perhaps, he will learn something more about freedom of speech. He specifically chides two of my First Amendment colleagues because he claims the letter violates Professor Jacobson’s free speech rights. This blinks at the fact that the clinicians had a right to speak, and that Professor Jacobson does not have a free speech right to be free of criticism.  

The Culture of Police Silence

Why can be done about police brutality and criminal misconduct? The murder of George Floyd was shocking and depraved. That other officers did not intervene is also indefensible. So also, is the behavior of officers who fired rubber bullets at peaceful law- abiding demonstrators including members of the press. The audacity of these officers is appalling.

Suppose a private citizen murdered another citizen in front of police officers. In the absence of collusion, wouldn’t the officers try to stop the murder and arrest the citizen? Suppose private citizens fired rubber bullets at citizens involved in a lawful protest or shot them at members of the press? Wouldn’t the officers arrest the private citizens for their criminal conduct.

What accounts for the daring of the officers who engage in criminal conduct? The fact is that the odds that these officers would be arrested by another police officer is quite small. As Ibrim X. Kindi wrote in The Atlantic in May, 2018 ”The National Institute of Ethics surveyed 3,714 officers and academic recruits from 42 states in 1999 and 2000. A no-snitching code of silence commonly exists, responded 79 percent of officers. More than half of the officers said this no-snitch code does not bother them. Nearly half of the officers reported witnessing misconduct and not reporting it. That’s probably because 73 percent of responding officers said they’d be fired if they snitched. And 73 percent of the officers said the individuals pressuring them to keep quiet were leaders.”   https://www.theatlantic.com/ideas/archive/2018/05/quis-custodiet-ipsos-custodes/560324/

Yes, social media has made criminal conduct by police officers more risky, but the no-snitching culture of police silence has to be frontally attacked. Criminal justice cannot be achieved when police officers participate in a culture making them complicit in criminal conduct.

The Wall Street Journal and Preposterous Claims about Joe Biden and Liberalism

Over the weekend, Barton Swaim, a Wall Street Journal writer claims that liberalism is dead, and that Joe Biden has no vision for the future. Indeed, Swaim states that Biden and liberalism only have a vision for the past. “The important thing about modern American liberalism, he says, is that it is a spent force. It is out of ideas.”

The pervading assumption of Swaim's column is that liberalism achieved its goals and has little else to do, but tinker with the welfare state. Swaim’s rampant hypocrisy turns a blind eye to the fact that the liberal agenda has never been fulfilled, and the failure to achieve it rests on the shoulders of conservative Republicans. The conservatives have opposed attempts to assure that every man, woman, and child has adequate food, clothing, shelter, and medical care. They have resisted attempts to guarantee a job for every American who wants one. They have perpetuated a regime of income inequality, and programs involving socialism for corporations and the rich including massive tax cuts. They have combated efforts to ensure the safety of workers and the quality of our environment. They have suppressed voting, and they have a long history of opposing anti-discrimination measures.

I am not opposed to new ideas, but it is preposterous to claim that liberalism is a “spent force.” The Democratic Party has much to fight for that has been left undone. Meanwhile, the Republican Party has one new idea: Genuflect to the latest whim of a sociopathic moron. This is not a vision for the past or future. It is moral leprosy.

Is Six Feet Enough?

It is not clear that the six foot guideline is safe enough. Here are two links that discuss the question. 

https://www.oregonlive.com/coronavirus/2020/04/6-feet-of-social-distancing-not-nearly-enough-cdcs-recommendation-driving-some-experts-nuts.html

https://thehill.com/changing-america/well-being/prevention-cures/490559-is-six-feet-enough-distance-to-keep-you-from

Comments?

Donald Trump and Moral Mass Murder

Laurence Tribe tweets that “Trump is ensuring the avoidable death of countless New Yorkers by deliberately sitting on 20,000 urgently needed ventilators so he can blame Cuomo. His moral culpability is that of a murderer even though the law doesn’t call him one.”

It is possible that Trump is withholding the ventilators so that he can blame Cuomo. I think it more likely that he is withholding the ventilators because New York votes Democratic. If New York were a swing state, does anyone doubt that he would have released the ventilators? There is good reason to believe that Trump held off from the beginning because he feared that the stock market would react badly. That was moronic and short-sighted from the perspective of the stock market and in pathological disregard of the public health. Only a thoroughly evil and twisted man would behave in that way. And even if his actions toward New York are not technically murder under the penal code, this form of mass murder shows him to be a sociopath and shows that Republican politicians and voters are willing to be allied with unspeakably horrendous acts.

The Basket of Deplorables is Getting Larger

According to the Time Magazine, Hilary Clinton said during the 2016 election campaign: “You know, to just be grossly generalistic, you could put half of Trump’s supporters into what I call the basket of deplorables. Right?” Clinton said. “The racist, sexist, homophobic, xenophobic, Islamaphobic—you name it. And unfortunately there are people like that. And he has lifted them up.” In my view those she spoke of were deplorables for the reasons she gave and reasons that stretched beyond their support for discrimination.

She said the other half of Trump’s supporters “feel that the government has let them down” and are “desperate for change.”

“Those are people we have to understand and empathize with as well,” she said. https://time.com/4486502/hillary-clinton-basket-of-deplorables-transcript/

It was not a politically smart thing to say and she apologized for her quantification of the deplorables since she really did not know the number. But she was right. Trump was relying on and stoking the deplorables to win.

Republicans in the Congress who voted to eliminate the health care of millions and voted to give a massive tax cut to wealthy Americans and corporations are moral lepers. And they have failed to live up to their oath of office by supporting the moral monster in the White House. To some extent they have failed because of the deplorable support of the voters in the Republican Party.

But there is more bad news. The New York Times reports this morning that a Gallup Poll released yesterday showed that 60% of Americans hold generally positive views of Trump’s handling of the coronavirus crisis. And his overall approval rating is 49%, the highest of his Presidency. I won’t bother to recite his well-known manipulation, lies, and important failures in dealing with this crisis past and present. I will say this:  If the Gallop poll is correct, the basket of deplorables filled with people of thundering ignorance is shockingly large. A democracy cannot survive with such rampant stupidity.

A Woman President

The withdrawal of Elizabeth Warren from the Presidential race has left many wondering whether a woman will be President in their lifetime. Of course, sexism played a role in undermining her candidacy. Some of it was overt. The Wall Street Journal said on Thursday that her take down of Mayor Bloomberg regarding his vulgar comments directed at women was an exercise in “identity politics.” Since when is it ultra-sensitive to complain that women are singled out by the boss for vulgar comments based on their appearance?  

Many drew the lesson that Hillary Clinton’s defeat showed that the nomination of a woman was risky business. Yet, she won the popular vote by 3 million votes. Of course, there was sexism which helped fuel the dislike that so many millions had for her. 52% of men voted for Trump; 41% for Clinton. 54% of women voted for Clinton; 39% for Trump.

Beyond this Clinton suffered from the intervention of the Russians, the shenanigans of James Comey, the candidacy of Jill Stein, the failure to go to important swing states late in the race, and the large number of voters who stayed home because they were sure that Trump could not win. To conclude from this that a woman cannot win the Presidency is entirely unwarranted.

Indeed, the prospect of a woman President is growing quite large. It is likely that Biden or Sanders both approaching 80 years old will pick a woman Vice President, and the stresses of the Presidency are unlikely to increase life expectancy.

It is also possible that Trump (whose age, waist line, stress level, and his suspicious trip for the “first installment” of his physical suggests that his health is risky) will dispense with Pence and pick a woman Vice Presidential candidate for 2020.

Many doubt that they will see a woman President in their lifetime. But it may be sooner than you think.

David Brooks and Bernie Sanders

David Brooks never ceases to annoy. In his Friday column he announces that he cannot vote for Sanders or Trump. He throws into the column his recollections of Soviet Union horrors including 20 million people killed. He argues that Sanders has made excuses for authoritarian regimes like that of Fidel Castro. To be sure, Sanders has noted that Castro did some good things. But Sanders has criticized the authoritarian aspects of that and other regimes.

There is absolutely no evidence that Sanders would undermine civil liberties. None. And to parade the Soviet Union’s atrocities is utterly irresponsible.

Beyond that Brooks maintains that Sanders has been ineffective in the legislature and that he embraces a populism that is hostile to liberalism. He accuses Sanders of lacking reasonableness, compassion, and optimism. He suggests that he exhibits an incessant hatred for his foes.

The column is filled with hyperbole. On the latter point, it seems to me that Sanders has stuck to the issues in the debates and has not exhibited a hatred of his opponents, incessant or otherwise. I do not support Sanders, but Brooks’ column is a disgrace.

I do not mind the claim that both Trump and Sanders support a form of populism. In the case of Sanders, there is no reason to hope or fear that his populist proposals will become law. Even if the Democrats win the House and Senate, and even if the filibuster is eliminated, there are too many not-so-liberal Democrats who will block his proposals.

In the case of Trump, if reelected, however, we will face a politicized Justice Department, a compromised intelligence community, an incompetent and corrupt administration, a politics that threatens the rule of law and respect for just values, a foreign policy that furthers the interests of Putin, an administration that substitutes selfish, wishful, and narcissistic thinking for science and the facts, and an administration that locks children in cages and tries to take health care from millions without compassion. If reelected, we will have a President who on a daily basis exhibits an incessant hatred of his critics and opponents, knows next to nothing about foreign policy, is unwilling to learn from the intelligence community, and engages in spectacularly foolish foreign policy judgments that are guided by his untutored intuitions, intuitions that are often fueled by rage. No one in their right mind appropriately trusts this man with nuclear weapons.

For David Brooks to say that he can’t choose between Sanders and Trump is appalling. In so doing, he joins the Sanders supporters who say they will take their marbles and stay home if Sanders does not get the nomination. Any such invocation of ideological purity is simply inhumane.

Trump's Suit Against the New York Times

Donald Trump has filed a libel lawsuit against the New York Times in which he complains about an opinion piece (published a month before the Mueller Report was released) that accuses Donald Trump of accepting help from Russia in exchange for policies favorable to Russia. As others have rightly observed, on the merits, the suit has no chance of success and appears to be a publicity stunt. https://www.salon.com/2020/02/27/laurence-tribe-trump-campaigns-lawsuit-against-new-york-times-designed-to-chill-the-free-press/

But the attempt for favorable publicity itself will fall apart. If the case is not abruptly dismissed, the Times will be entitled to discovery from Trump and those in his campaign. So, expect the Times to send written questions to Trump (which must be answered truthfully) followed up by a demand for a deposition. Trump will not answer the questions or appear for a deposition. In a civil case, plaintiffs cannot refuse to answer questions relevant to the proceeding. The last thing Donald Trump wants to do is to answer questions under oath about his campaign’s relationship to Russia. The law suit will be dismissed and will be revealed for the abuse of process that it is: one more demonstration of his lack of respect for the law. What has begun as a publicity stunt will finish as an embarrassment.

Is Bernie Sanders Doing a Good Job of Preparing for the General Election (if he gets the nomination)?

What Sanders said about Fidel Castro is accurate, but would any good politician who wanted to win the swing state of Florida double down on this statement? Wouldn’t a good politician emphasize that there was more bad than good in the Castro regime and that he regretted the harm his praise may have occasioned to the many who suffered under the regime?

Sanders opposes fracking for good reasons, but this is not a popular position. Is there any doubt that Trump will call this to the attention of swing state Pennsylvania voters in a powerful way? Can we be confident that current polls will remain steady through the fall after an avalanche of Trump ads?

Would any good politician say that he does not want the $1 billion that Bloomberg had previously promised to spend for any Democratic candidate? See https://nymag.com/intelligencer/2020/02/bernie-id-rather-lose-than-let-bloomberg-spend-money-on-me.html Bloomberg has now said that he will abide by the wishes of Sanders. Sanders’ throwing away of $1 billion in campaign expenditures on his behalf and against Trump is an astonishing case of excessive ideological purity. It risks throwing tens of millions of vulnerable people under the bus and risks the continuation of our headlong rush toward unchecked power in the hands of a moronic sociopath.

Putin and the Republicans

The Democrats should run against Putin and his accomplices and enablers in the U.S. 

Advice for the Agnostics Among Us

We are not living in the Middle Ages. As Charles Taylor has observed, doubts about the existence of God are common among believers, and many are full time agnostics. As William James understood, agnostics are not off the spiritual hook. They still have to figure out how to lead a good life, and they cannot rule out the possibility of some sort of Divine entity.

Susan Stabile was raised a Catholic, moved to Buddhism and back again. She is always a source of insight. Recently, she drew on Simone Weil to think about spiritual advice for agnostics. Her meditation is short and worth reading. https://susanjoan.wordpress.com/2020/02/11/simone-weils-experience-of-god/ 

Progressives and Deplorable Conduct

Some of Bernie Sanders’ supporters (it’s hard to know how many) are acting in ways that give the campaign a bad name. In response to Clinton’s criticism of Sanders, a recent thread on Facebook in various comments accused her of being moronic, narcissistic  (or possessed by power hungry narcissism), idiotic and venal as hell, a piece of s..t, completely insane, a thug, corrupt, motivated by envy, or motivated by money. To this I responded, “If Sanders wins, you will have to secure the votes of former Clinton voters. If Sanders does not win, you will assist in the re-election of Trump by not voting for Warren or a "moderate" candidate. Do you really think the ferocity of the above comments is constructive? Is it possible that Clinton's comments are sincere (however misconceived) and not prompted by mental illness, a thirst for power, money, or the like. I don't like her statements either, but in my opinion, there is a Trumpian quality to the comments assembled in this thread.”

A few days ago a group called NY Communities for Change bragged that they brought a coffin to a Biden fund raiser “to mourn the death of Biden’s campaign. They wouldn’t let us in, but we held a service in the lobby.”

In response, Bob Shrum, long time advisor and speech writer to major Democratic candidates, said “this is Trumpism on the left. And I’m a progressive Democrat. It’s obscene and debases you as you assault a man who has lost a wife and two children in the most painful ways. I denounce you; Sanders should too.”

Shrum has not endorsed a candidate in this campaign and neither has NY Communities for Change (From their site it is clear that they will not be supporting Mayor Mike or Mayor Pete). But there is something deeply wrong and pragmatically foolish when progressives act like Trump.

The Upside of a Post-Impeachment World

One downside of the impeachment and Senate non-trial of Donald Trump is that it distracted media attention from the important bills passed by the House which are still sitting in the McConnell graveyard. Just because the media has focused on impeachment does not mean that the Democratic House has neglected important policy needs. In fact, the House has passed more than 400 bills.

I mention this as a prelude to a brief response to Daniel Henninger’s “Wonderland” column in yesterday’s Wall Street Journal in which he claims that normal political issues will not be relevant to the Democratic Party’s strategy in 2020. Instead, he hypothesizes, the Democrats will run against the person of Donald Trump and forego consideration of the normal political issues. All this to conceal the divisions in the Democratic Party.

Mr. Henninger’s column is aptly named except it is he who lives in wonderland.  Of course, Democrats will run against Trump – the ignorant, lazy, corrupt monster. But the principal issue is 2020 will be the same it was in 2018. The Republicans want to take away the health insurance of millions, and they are in court trying to do precisely that. In 2018, the Democrats pushed kitchen table issues in their states and districts, and they have passed bills to speak to those issues including minimum wage, the environment, equal pay for women, election security, gun control, pre-existing conditions, prescription drugs, and the like. The reason those bills are not law is a do-nothing Senate led by a corrupt Speaker who won’t even let the bills get to the floor.

Of course, the Democrats are divided on issues of policy, but not so divided that they cannot hammer out agreements on policy in the House. And, we can be sure, that Democrats across the land will be forcing Republicans to justify their unwillingness to pass legislation the people want and need.

All of this is obscured by the fantasies of Wonderland. It will also be obscured by the media’s single-minded focus on the Presidential race. But when the campaign begins and Democrats all over the country are running, the dreams of Wonderland will be shattered and perhaps the mass media will broaden its horizons.

The Iowa Results and Societal Sickness

The fact that Iowa is demographically unrepresentative is a serious problem, and Iowa should not be the first in line for the selection of Presidential delegates. That its results are later than they should be, however, is considered a serious problem only by those who are desperate for instant gratification. Regrettably, their numbers are many. That is a form of societal sickness. Thus, Stanford Law Professor Nathaniel Persily refers to the misguided apoplexy of those cable pundits who could not announce the results immediately.  The notion that the delay warrants any significant conclusions about the Democratic Party is  preposterous.

L x A=W: On The Weight of Legal Norms

L x A=W: On The Weight of Legal Norms

Peter Gabel

The critical legal studies movement and the emerging law and political economy movement both emphasize the way that legal rules and doctrines help both to constitute and to legitimize an unjust social and political order. Critical Legal Studies, which I have been closest to over 40 years, started out with many tendencies—Marxist and neo-Marxist, legal realist with a more leftist political bite, anti-formalist with both progressive policy-oriented and deconstruction-based wings, and also with a critique of social alienation that emphasized the distortions in human relations that are masked by law’s empire, law’s historical attempt to justify as morally elevated what has been lived in reality, to some significant degree, as suffering and injustice and estrangement.  But for all of the diversity in its beginning, CLS has gradually come to be understood in the public mind as primarily a deconstruction of the seeming fixed character of legal doctrine.  In the work of many actual CLS writers, and certainly in the work of many who write about CLS and its meaning as a school of left legal thought, CLS has primarily come to be associated with the idea that legal doctrines are always indeterminate in their application, and that therefore the actual application of law always requires moral and political judgment.  And once thus unmasked of its pretense to neutrality and objectivity apart from choice and decision, law must be understood as an inherently politically-informed activity, with the corollary that there can be no separate arena for a professional class to legitimately engage in a specialized form of thought (or mere “craft”) called legal reasoning that is distinct from underlying moral and political commitments, however conscious or unconscious those commitments are.

As important as this last contribution by CLS has been to opening up critical thought about law, it has in my view had a shortcoming…a tendency to overestimate the plasticity of law by separating the cognitive dimension of legal thought from the world of social being out of which legal ideas are born. In Marxism, that world of social being is defined by the economy and the supposed material interests that drive it, with law serving to reflect/encode/legitimize those interests…and thus the legal norms of freedom of contract, for example, both reflect and legitimize the operation of the free market, the exploitation of labor, and at the level of the superstructure, the culture of competitive individualism. To this formulation, CLS adds that the legal norms don’t merely reflect but also help to constitute those socio-economic practices through a juridico-moral discourse given a falsely determinative character, with collective obedience to law (and deference to the existing system) being the result, in part, of the appearance of determinacy (if legal norms don’t dictate results, there is nothing to “obey”).

But the shortcoming here, of both the Marxist account and the CLS critical modification or transformation of that account, is (in my view) that the “world of social being” is neither shaped exclusively by material interests, nor by legal discourse or any other linguistic or representational feature, but by the flow of intersubjectivity that manifests both the everpresent desire for mutual recognition pulsing through every human being from birth, and the fear of the other’s disconfirmation of self that is awakened by this desire. That fear of disconfirmation, or if you like non-recognition or misrecognition (though I prefer disconfirmation), is an historical artifact, the result of centuries of social alienation of self from other enacted through war and violence, through the reproduction of class societies, through patriarchy and racism, and most generally through the fear-saturated reproduction of social separation that has disabled us from becoming fully vulnerable to one another, from fully entering into each other’s presence as I and Thou, to use Martin Buber’s formulation.

This is to say that social alienation has a “weight” that shapes social relations decisively, though not completely because of the desire for authentic mutual recognition that always, in every moment, transcends it. As I show in my recent book The Desire for Mutual Recognition: Social Movements and the Dissolution of the False Self, this weight of social alienation is lived out and carried forward through rotating patternings in social life in which each person internalizes the degree of alienation transmitted to him/her/them through every encounter and then re-externalizes it toward others in a circulating fashion, forming the lived terrain of “society” at any given time.

The weight of social alienation thus generated and reproduced (internalized and re-externalized) is measured at any given moment by the balance between fear of the other and the desire to transcend that fear present in the social field as an intersubjective flow of social energy, of life itself. To the extent that a given historical moment is characterized primarily by the circulation of fear of the other, to that extent the social world appears “heavy”—it weighs down upon us in its inertia as each of us feels compelled, against our own transcendent longing, to re-externalize the withdrawnness of spirit transmitted to us in a rotating fashion. And the reason for this is that ontologically we must become the way we are recognized…we are each social in our very being and we shape each other through how we experience and are experienced by each other, through the balance of fear and desire in our inter-experience. 

To the extent that the weight of social alienation is “heavy” upon and within us, to that extent the norms of social life are not “indeterminate” but are rather weighted down beyond our social ability at that moment to lift them. This isn’t to say we can’t try, in every interaction and across social space in groups and organizations and nascent “movements”; but if the weight transmitted through social space is very heavy, it probably cannot for the moment be moved, although the heavy world can be everywhere influenced and inflected by our efforts. And the importance of that work of inflection, as well as the potential for it in every social interaction and flow, should not be minimized—it remains the visible source of hope as we try to find the key to reversing the circulation of alienation so that desire everywhere contained can break out, can break on through to the other side, can become a public force for good.

Because legal norms are expressive of the field of social being out of which they emerge, they carry the weight of that social field—in fact as mere verbal concepts and accompanying signifying practices, they both “reflect” the social field in which they are enmeshed and they help to constitute that field by rotating the field itself through their legitimating prism. (The Supreme Court “pontificates” the necessity of the “world” it expresses with the rightness of that world’s “is-ness”, and adds some weight to it that way). For Critical Legal Studies, legal norms are indeterminate in their application to any case because CLS apprehends those norms abstracted from the field, but within the field in its social reality as a living interexperience in history, these legal norms carry the weight of the degree of social alienation shaping their transmission. Or we could say, using a kind of sculpture metaphor, that a legal norm prevailing at any time is made of the material of that moment’s social flow and that material always has a certain weight measured by the degree of social alienation present in it.

If we were to try to express this point through a kind of Newtonian formula, we could say that  W=L x A, where W equals the weight of a legal norm, and L equals the legal norm itself (or doctrine or rule), and A equals the degree of alienation prevailing at a given moment. The degree of determinacy of any legal norm, then, would depend not only upon its abstract plasticity, but also on the weight it carries within itself as a manifestation of the degree social alienation present in the social field at any given time.

Consider the legal norm prohibiting gay relationships prevailing not so long ago, perhaps 50 years ago. That legal prohibition was weighed down by the then culture’s level of social alienation that normatively channeled legitimate sexuality into heterosexual life and so to speak “clung” to that single exclusive form of intimate vulnerability as part of the denial of desire for a truly open society. In this sense, at that moment, sex between same-sex partners appeared to threaten the fear-saturated heterosexual world with loss of the “clinging” or defensive possession of one’s opposite-sex partner. As I show in “The Fear of Gay Marriage” (please see my book Another Way of Seeing p. 131), it is the generalized fear of the other, of the presence of real other persons, experienced as a terror of vulnerability, that leads to the hyper-possession of only one kind of sexual partner (heteronormativity) and the demonization of other forms of sexual expression and love. And in this environment, the law was not in fact plastic or indeterminate in relation to the possible application of, say, “the right of privacy” to strike down anti-sodomy laws, much less to use of a constitutional “fundamental right to marry” or use of 14^th amendment equal protection doctrine to allow gay relationships to be reconciled with the then sanctity of heterosexual marriage. The purely cognitive notion of indeterminacy would suggest that it would “always” have been possible to strike down homophobic laws by use of available constitutional doctrines, but when the cognitive is more fully embedded in the reality of intersubjective life as it is actually lived in history, we can see that the weight of the homophobic legal norms 50 years ago made them precisely “heavy” with determinacy. How our actual culture interprets the indeterminate legal materials is not merely a matter of political choice in the cognitive sense, but of the degree of alienation across the culture as a whole determining the distribution of the weight of the legal materials. When legal norms are “weighted down” by a circulating fear of the other that blocks and forbids open-heartedness, these norms become closed to liberating interpretations.

The LGBTQ movement, as one vector of the bursting-open force of the 60s, is an ideal vehicle for allowing us to see the relationship between the “rising” of a social movement and the gradual lightening of a legal norm, which then makes possible the reinterpretation of suddenly plastic legal materials. For the effect of this movement, like that of all social movements that are liberatory and embody the realization of previously blocked human desire, has been to partially thaw the frozen character of historical heteronormativity. The wider social movement out of which the LGBTQ movement was able to gain its traction in social space was itself a movement of the desire for authentic mutual recognition and vital, erotic human connection breaking beyond its alienated constraints. That force of desire and longing for human connection, for escape from and transcendence of the withdrawn space enclosed by fear of the other, of each other, is what actually moves in a movement…it is what the word “movement” actually refers to in its evocation of lived social being. In its LGBTQ manifestation, that movement expressed itself in a sustained, insistent challenge, across this entire 50-year period, to the closure of sexual space that required the demonization and often brutalization and murder of gays and lesbians. And to the extent that the force of the movement introduced into social space a living alternative to fear of the other, of the person next to us, to that extent the collective heart became open enough to be less frightened of vulnerability, less defensively possessive of a single legitimate sexual channel, and therefore more open to the moral truth of the LGBTQ desire for participation in the erotic sphere of human community. Out of that gradual thawing at the level of social being in historical context could emerge Lawrence v. Texas striking down anti-sodomy laws, and then later Obergefell v. Hodges legalizing gay marriage, at the level of the transformation of legal doctrine.

It is the liberating and binding power of social movements, as they “emerge” and “rise up” in social being, that allows law and legal doctrine to gain the real historical plasticity that CLS and perhaps LPE want to claim for it. The work of showing this plasticity of legal materials in every field of law is still very valuable and worth doing as intellectual work that widens in our perceptual field the visible social space that we could walk through if we were to become able to do so. But the reality of the transformative power that this critical legal work aspires to also requires an alliance with the great disalienating force of desire and longing that pulses through every human heart, and that holds the power, when ignited and organized into a mutually affirming movement, to dissolve the false appearances to which the world as a hold clings in periods of the hegemony of fear. 

If we understand this disalienating force of desire as a radiant energy that can, when liberated, spread very rapidly from person to person through the interbeing medium that connects us, and if we understand alienation as a the counterforce of fear of the other that blocks the flow of desire and pools it up within now-separated “individuals,” we may now expand upon our Newtonian metaphor to say that the degree of alienation is a function of the fear-desire ratio prevailing at a given historical moment, or better, within or “during” a given historical time-flow. This in turn permits us to expand upon the formula L x A=W, with the degree of alienation now understood as a function of the fear/desire ratio, which can be expressed as A=F/D. If A is greater than 1, law is increasingly determinative in its application. To the extent that A approaches and becomes less than 1, law becomes increasingly plastic and open to liberating interpretation.

Of course these formulas should be taken lightly, but they do name something real—the collective longing and effort to overcome the historical constraints that separate us and the ricocheting power of opening our hearts to each other’s presence once we can get the ball rolling.

Reflections on the Democratic Presidential Field

Many citizens have expressed the sentiment that Donald Trump is an ignorant, lazy, mean, narcissistic, sexist, racist, sociopath, but they are not sure they can bring themselves to vote for someone as far left as Sanders or Warren. Even if Sanders or Warren were too far left, it is clear to me that the evil of Donald Trump ought to weigh more heavily than the discomfort of voting for a candidate who is perceived to be too far left.

The fears many have of the “left” policies are misplaced because Klobuchar and many others are right: those policies will never get through the Senate even if the Democrats control the Senate and even if the Democrats dispense with the filibuster. Yes, many fine policies will be adopted if a Democrat wins the White House, but there are too many not-very-liberal Democrats, too much lobbying, and too much money in election campaigns to hope or fear that many of the truly progressive policies expressed on the debate stage will be enacted.

At the same time, many citizens believe that the Democrats can only win if their candidate is charismatic enough to inspire voter turnout. This too rests on an unfounded fear. The many elections of 2018 and since show that Donald Trump is the worst thing that has happened to the American government and the best thing that has inspired citizens to turn out to vote for Democrats. There is no reason to believe this will change in 2020.

This is not meant as an endorsement of any candidate. With respect to Sanders and Warren, for example, those who support them will be disappointed by their failure to get many of their policies adopted, but they will be heartened by the presence of a President who tries to push the country in a progressive direction.

If you think the most important thing is to oust Trump, as I do, then the best evidence of that capacity will be the securing of the nomination. We don't know who that will be. We must have patience.

But I have no patience with those Democrats who say that Donald Trump will win. Perhaps he will. But they say this with no credible evidence at this point. Their contention is supported by defeatism, cynicism, perhaps a desire to appear wiser than they are, perhaps a psychological need to be a victim, or perhaps a desire to experience the worst before it happens and whether or not it happens. They, of course, have a right to express their views, but there is nothing constructive about those views.

Finally, I have no patience with those who soft peddle the existence of a madman in the West Wing: a man who cages children, seeks to take health insurance from millions, transfers multi-billions of dollars to the wealthiest individuals and corporations – all the while pretending that he is benefiting the middle class, willfully denies the existence of climate change, and daily reminds us of the many ways corruption can be a guiding light not only in the departments of our government, and in our democratic elections, but also in the poisoning of our public discourse with his constant stream of lies and bullying insults.

He is a man who cannot or will not read reports prepared by the intelligence community; and acts instead in ways that serve the interests of Putin from Europe, to Turkey, to Syria, to the Ukraine. Indeed, he is a man who still refuses to admit that the Russians interfered in the last Presidential election.

This dangerous man is almost uniformly supported by sycophantic Republican politicians. Those Democrats who claim that they will only vote for particular Democrats they now favor in the general election would do well to rethink the rigidity of their position.

 

The House can Impeach and Chew Gum at the Same Time

Donald Trump and his campaign ads argue that the House's focus on impeachment is irresponsible because it has gotten in the way of dealing with the bread and butter issues the people sent Representatives to Congress to address. Wall to wall focus on Trump by the mass media has assisted this fictitious narrative. In fact, the House has passed nearly 400 bills - many of them quite important. 80% of those bills have been buried in Mitch McConnell's graveyard, and the 80% includes vital legislation regarding health care, climate change, civil rights, help for Veterans, gun control, the environment, consumer protection, worker's rights, and the safeguarding of our elections. For discussion and a list (at the bottom of the link) of many of the important bills passed by the House, see https://www.vox.com/2019/11/29/20977735/how-many-bills-passed-house-democrats-trump?fbclid=IwAR17FPw-9-klCzuof7TmN9HmpuUFvUW1Lk_z7NOaKIw3L8ojeSMLRCA0VKU.

Thanksgiving Reflection

Grateful: The Subversive Practice of Giving Thanks (2018) by Diana Butler Bass is a wonderful book for our Thanksgiving in the Trump era. Here's a sample: "Gratitude is a defiance of sorts, the defiance of kindness in the face of anger, of connection in the face of division, and of hope in the face of fear. . . . Gratitude undoes evil by tunneling  under its foundations of anger, resentment, and greed. Thus, gratitude strengthens our character and moral resolve . . . it untwists knotted hearts. Pain, suffering, and injustice ... are all real. Gratitude, however, invalidates the false narrative that these things are the sum total of human existence . . . . Being thankful is the very essence of what it means to be alive, and to know that life abundantly."

For Bass, gratitude involves feelings, but also the ethics of action in personal and communal or public life life.

The Mueller Report and the Ukraine Affair

The Republicans continue their spin that the Mueller Report exonerated Donald Trump. Far from it. In addition to showing that Trump obstructed justice in numerous ways, the Report showed that the Russians intervened in our elections and that the Trump campaign gleefully accepted this assistance instead of reporting it to law enforcement authorities. Indeed, campaign chairman, Paul Manafort gave information to the Russians concerning the Trump campaign strategy. Only a precious (and wrong-headed) conception of intent and conspiratorial agreement prevented Mueller from concluding that the  Trump campaign did not violate the law on this front.

The Ukraine  Affair shows that Trump is seeking interference again in the 2020 elections. It is also clear he is seeking the help of the Russians and the Chinese.

The Republicans suggest that Ukraine, not the Russians interfered in the 2016 elections despite the Mueller Report, the many indictments of Russians,and the conclusion of 17 American intelligence agencies. The Republicans ignore that the seeking of value from a foreign power in an election is itself illegal; that the solicitation of a bribe is itself a crime; and that attempted extortion is a crime whether successful or not. The Republican ignore that abuse of office and undermining our democracy are impeachable offenses whether or not they are indictable offenses.

The Republicans complain that impeachment would overturn the results of the 2016 elections. If convicted, Trump would be removed from office, that is the constitutional purpose of the process. The Republicans say we should wait and judge Trump in the next elections, the same elections for which he seeks illegal foreign interference.

Zuckerberg and the First Amendment

Mark Zuckerberg maintains that he will not remove lies from politicians harming the reputation of others because he believes in the First Amendment. As the Supreme Court, however, has stated, knowingly false defamatory statements have no constitutional value. Moreover, such statements harm both the subject of the falsehood and deceive their readers. Keeton v. Hustler Magazine, Inc. Although, the Court in U.S. v. Alvarez has ruled that political lies are not always unprotected, crucial votes in the case reemphasized that defamation even of public persons is unprotected if it is a knowing falsehood or made in reckless disregard of the truth., citing New York Times v. Sullivan.

Zuckerberg insists that Facebook will not fact check political posts. But Facebook should fact check defamatory political posts when it receives notice of falsity. It has already refused to remove a post defaming Joe Biden which it surely knows is false. It distorts the First Amendment when it is used as a cloak to defend this reckless refusal to protect readers.

Trump, of course, will applaud this policy. So, presumably, will Putin. They will benefit from an open venue for their lies.

Zuckerberg might have business reasons for his approach; he might want the Trump/Putin coalition to win. But “my belief in the First Amendment made me do it” draws on a First Amendment that is no part of our Constitution.

The Republicans False Process Argument

The Republicans complain that the impeachment hearing have been held in secret. What they do not reveal is that the Republican members of the relevant committees have every right to sit in and ask questions. Who set up the rules for these grand-jury like proceedings? You guessed it: the Republicans when they controlled Congress. So their process points are completely without merit. These responses sometimes appear in the press, but not enough.

Impeachment and the Senate

Republican Senators are maintaining that Putin's Puppet - Donald Trump should not be impeached in the House or convicted in the Senate because the election should decide - an election he hopes to steal with Moscow's help as he did last time.