The Insolence of Office

So, yesterday's oral argument in Shelby Co. v. Holder, challenging the constitutionality of section 5 the Voting Rights Act, is pretty depressing reading. Not merely because of the fact that a rump majority seems poised to strike down the statute, but because the paucity of the reasoning on which they seem prepared to do so is such as to undermine the credibility of judicial review.

What do I mean by this? It's quite simple, really; the Court seems poised to strike a major civil rights statute on the theory that a bare majority of its members disagree with the policy it embodies and the constitutional amendment pursuant to which it was enacted. The Fifteenth Amendment provides:

AMENDMENT XV
Passed by Congress February 26, 1869. Ratified February 3, 1870.

Section 1.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude--

Section 2.
The Congress shall have the power to enforce this article by appropriate legislation.

At the time the Voting Rights Act of 1965 was enacted, the Congress confronted a near-century in which the Fifteenth Amendment was simply, openly, defied by the covered jurisdictions. As the Supreme Court summarized in upholding the VRA's constitutionality in South Carolina v. Katzenbach:

The Fifteenth Amendment to the Constitution was ratified in 1870. Promptly thereafter, Congress passed the Enforcement Act of 1870, [n6] which made it a crime for public officers and private persons to obstruct exercise of the right to vote. The statute was amended in the following year to provide for detailed federal supervision of the electoral process, from registration to the certification of returns. As the years passed and fervor for racial equality waned, enforcement of the laws became spotty and ineffective, and most of their provisions were repealed in 1894. The remnants have had little significance in the recently renewed battle against voting discrimination.

Meanwhile, beginning in 1890, the States of Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia enacted tests still in use which were specifically designed to prevent Negroes from voting. Typically, they made the ability to read and write a registration qualification and also required completion of a registration form. These laws were based on the fact that, as of 1890, in each of the named States, more than two-thirds of the adult Negroes were illiterate, while less than one-quarter of the adult whites were unable to read or write. At the same time, alternate tests were prescribed in all of the named States to assure that white illiterates would not be deprived of the franchise. These included grandfather clauses, property qualifications, "good character" tests, and the requirement that registrants "understand" or "interpret" certain matter.

The course of subsequent Fifteenth Amendment litigation in this Court demonstrates the variety and persistence of these and similar institutions designed to deprive Negroes of the right to vote. Grandfather clauses were invalidated in Guinn v. United States, 238 U.S. 347, and Myers v. Anderson, 238 U.S. 368. Procedural hurdles were struck down in Lane v. Wilson, 307 U.S. 268. The white primary was outlawed in Smith v. Allwright, 321 U.S. 649, and Terry v. Adams, 345 U.S. 461. Improper challenges were nullified in United States v. Thomas, 362 U.S. 58. Racial gerrymandering was forbidden by Gomillion v. Lightfoot, 364 U.S. 339. Finally, discriminatory application of voting tests was condemned in Schnell v. Davis, 336 U.S. 933; Alabama v. United States, 371 U.S. 37, and Louisiana v. United States, 380 U.S. 145.

According to the evidence in recent Justice Department voting suits, the latter stratagem is now the principal method used to bar Negroes from the polls. Discriminatory administration of voting qualifications has been found in all eight Alabama cases, in all nine Louisiana cases, and in all nine Mississippi cases which have gone to final judgment. Moreover, in almost all of these cases, the courts have held that the discrimination was pursuant to a widespread "pattern or practice." White applicants for registration have often been excused altogether from the literacy and understanding tests, or have been given easy versions, have received extensive help from voting officials, and have been registered despite serious errors in their answers. [n12] Negroes, on the other hand, have typically been required to pass difficult versions of all the tests, without any outside assistance and without the slightest error. The good-morals requirement is so vague and subjective that it has constituted an open invitation to abuse at the hands of voting officials. Negroes obliged to obtain vouchers from registered voters have found it virtually impossible to comply in areas where almost no Negroes are on the rolls.

All of Congress's previous efforts to remedy this obstructionism, however, failed due to massive resistance from the covered jurisdictions.

The evidence is quite strong that by any reasonable interpretation, the Fifteenth Amendment was intended by its Framers, understood as, and in fact by its text does create in Congress a "strong, sweeping power to stamp out every conceivable attempt by the states to deny the franchise on account of race."

Meanwhile, in City of Boerne v. Flores (1997), as part of its judicial creation of federalism guarantees in favor of states' rights, even against explicit constitutional provisions, arrogated to itself the power to judge the "proportionality and congruence" of statutes enacted under the similar power granted Congress under the Fourteenth Amendment.

So the hostility displayed by the conservative members of the Court toward the VRA presents the curious spectacle of professed textualists privileging their own notions of federalism over the explicit grant of power to Congress in the text; originalists blithely assuming that preservation of the autonomy of the states in its pre-Civil War glory was the goal of the Reconstruction Congress, and all while professing to be neutral solons of the law while deriding, in Justice Scalia's case at least, the very notion of Congress protecting the rights of minority Americans to vote under a constitutional provision that explicitly empowers it to do just that. Really, it almost makes me wish I'd picked another line of work.

Dr. Williams on the Doctor...

Now, I have on several occasions been critical of former Archbishop of Canterbury Dr. Rowan Williams, and, I think, with some reason. Still, I had not known that we shared a bond, as reflected in his Easter 2011 sermon:

We’re now officially told that it’s a good idea to be happy. Politicians have started talking about happiness rather than just prosperity, and there is even a research programme on the subject, trying to identify the essence of human well-being. And it’s nice and entirely appropriate that we are being encouraged to some public displays of shared celebration next Friday: let a thousand street parties blossom!

Now it’s certainly a good thing that people have publicly acknowledged that there is more to life than the level of our Gross National Product, that we’re just beginning to say out loud that corporate prosperity divorced from personal and communal fulfillment or stability is an empty thing. It’s when we try and put more flesh on this that it becomes more complicated – and, worse still, more self-conscious. Some of you might just remember an episode of Doctor Who a couple of decades ago called ‘The Happiness Patrol’ where the Doctor arrives on a planet in which unhappiness is a capital crime, and blues musicians lead a dangerous underground existence. But less dramatically, most of us know the horrible experience of a family outing where things aren’t going too well and Mum or Dad keeps saying, through ever more tightly gritted teeth, ‘This is fun, isn’t it?’

There’s the catch: the deepest happiness is something that has crept up on us when we weren’t looking. We can look back and say, Yes, I was happy then – and we can’t reproduce it.

Dr. Williams is, of course, right, as is his colleague Doctor Who; that other eminent sage T.H. White had something to say on the matter in his posthumously published The Book of Merlyn:

Imagine a rusty bolt on the garden door, which has been set wrong, or the door has sagged on its hinges since it was put on, and for years the bolt has never been shot efficiently: except by hammering it, or by lifting the door a little, and wriggling it home with effort. Imagine then that the old bolt is unscrewed, rubbed with emery paper, bathed in paraffin, polished with fine sand, generously oiled, and reset by a skilled workman with such nicety that it bolts and unbolts with the pressure of a finger - with the pressure of a feather - almost so that you could blow it open or shut. Can you imagine the feelings of the bolt? They are the feelings of glory which convalescent people have, after a fever. It would look forward to being bolted, yearning for the raptures of its sweet, succesful motion.

For happiness is only a bye-product of function, as light is a bye-product of the electric current running through the wires. If the current cannot run efficiently, the light does not come. That is why nobody finds happiness, who seeks it on its own account. But man must seek to be like the working bolt; like the unimpeded run of electricity; like the convalescent whose eyes, long thwarted in their sockets by headache and fever, so that it was a grievous pain to move them, now flash from side to side with the ease of fishes in clean water. The eyes are working, the current is working, the bolt is working. So the light shines. That is happiness: working well.

Happiness as a byproduct of being one's own best self. I like that, really, I do.

Now, not only do I agree with the sentiment expressed by Doctor Williams but it's interesting that he is not reaching out for a well-beloved (to non-fans) episode of the show; he's picking a politically left of center episode, whose standing is, shall we say, controversial. In short, Dr. Williams is revealing a suspiciously geeky knowledge of Doctor Who. This makes me like him a little better, I confess. Although, remember Damian Thompson's rejection on the suspicion that "Archbishop Rowan Williams is reminiscent of Doctor Who's arch-enemy the Master, as played by Roger Delgado in the incomparable Pertwee era, on the ground that "I think that's a bit unfair. On the Master"? Well, guess what?

As Dr. Williams' statement regarding The Happiness Patrol indicates, and as Dr. Sandifer's linked analysis ofthe episode supports, the Sylvester McCoy era is Doctor Who with a strong viewpoint. The Doctor himself is brilliantly mecurial as played by McCoy, clowing one minute, only to suggest hitherto hidden depths of deviousness and manipulativeness. The scripts perk up after a dreary start, and, while often far from perfect, the series rises from the nadir of the Colin Baker era (not Baker's fault, though, as I previously noted), has found its voice and its function again.

One might say it was happy.



And, bonus in-joke for fellow Whovians:

The Devil Made Him Do It?

When I was a boy, the very first classical play I saw starred my cousin, Robert Stattel. It was the CSC Repertory production of Marlowe's Tragicall Historie of Dr. Faustus. Alas, no footage I can discover, but here's a somewhat decent introduction to the opening of the play:

Ever since, both the Faust story (Marlowe's, Goethe's and many of the variants thereof, from The Devil and Daniel Webster to The Twilight Zone's "Printer's Devil", not to mention Bedazzled), and Marlowe's other plays have always appealed to me. Marlowe is fascinating on the subject of pride as deadly, and yet as having a perverse appeal. The modern anti-hero is at the center of each of Marlowe's plays. A fascinating archetype being delineated right before the Elizabethan audience's eyes. There are a myriad of Faustian forerunners, of course, and there even appears to have been a 15th Century Dr. Faust, or Fust. But one of the great literary synchronicities, if not an actual source, can be found in Book Five of St. Augustine's Confessions:

There had just come to Carthage a certain bishop of the Manicheans, Faustus by name, a great snare of the devil; and many were entangled by him through the charm of his eloquence. Now, even though I found this eloquence admirable, I was beginning to distinguish the charm of words from the truth of things, which I was eager to learn. Nor did I consider the dish as much as I did the kind of meat that their famous Faustus served up to me in it. His fame had run before him, as one very skilled in an honorable learning and pre-eminently skilled in the liberal arts. **** For almost the whole of the nine years that I listened with unsettled mind to the Manichean teaching I had been looking forward with unbounded eagerness to the arrival of this Faustus. For all the other members of the sect that I happened to meet, when they were unable to answer the questions I raised, always referred me to his coming. They promised that, in discussion with him, these and even greater difficulties, if I had them, would be quite easily and amply cleared away. When at last he did come, I found him to be a man of pleasant speech, who spoke of the very same things they themselves did, although more fluently and in a more agreeable style. But what profit was there to me in the elegance of my cupbearer, since he could not offer me the more precious draught for which I thirsted? **** For as soon as it became plain to me that Faustus was ignorant in those arts in which I had believed him eminent, I began to despair of his being able to clarify and explain all these perplexities that troubled me--though I realized that such ignorance need not have affected the authenticity of his piety, if he had not been a Manichean. For their books are full of long fables about the sky and the stars, the sun and the moon; and I had ceased to believe him able to show me in any satisfactory fashion what I so ardently desired: whether the explanations contained in the Manichean books were better or at least as good as the mathematical explanations I had read elsewhere. But when I proposed that these subjects should be considered and discussed, he quite modestly did not dare to undertake the task, for he was aware that he had no knowledge of these things and was not ashamed to confess it. For he was not one of those talkative people--from whom I had endured so much--who undertook to teach me what I wanted to know, and then said nothing. Faustus had a heart which, if not right toward thee, was at least not altogether false toward himself; for he was not ignorant of his own ignorance, and he did not choose to be entangled in a controversy from which he could not draw back or retire gracefully. For this I liked him all the more. For the modesty of an ingenious mind is a finer thing than the acquisition of that knowledge I desired; and this I found to be his attitude toward all abstruse and difficult questions..... But all my endeavors to make further progress in Manicheism came completely to an end through my acquaintance with that man. I did not wholly separate myself from them, but as one who had not yet found anything better I decided to content myself, for the time being, with what I had stumbled upon one way or another, until by chance something more desirable should present itself. Thus that Faustus who had entrapped so many to their death--though neither willing nor witting it--now began to loosen the snare in which I had been caught.

It's a curious echo, isn't it, even if nothing more? And, in Book IV of the Confessions, Augustine rejects by turns rhetoric, astrology, pagan religion, and Aristotelian philosophy. There's even a friendly doctor in chapter 3 of the book who tries to dissuade Augustine from following astrology. Did Marlowe have this progression in mind in creating Faustus' great opening soliloquy read by Richard Burton above? Is this strangely likable and sympathetic sinner a prototype of Marlowe's greatest anti-hero, or is it just a piece of literary curiosa? Speculation, of course. One can view many different takes on the play, if not the one that so moved me as a boy. Here's a decidedly modern spin, in Edinburgh:

No, Nay Never; No, Nay Never, No More!

Over at the re-energized (if still conspicuously centrist) New Republic, Sam Tanenhaus has an interesting, and provocative article, Original Sin: Why the Republican Party is and Will Continue to be the Party of White People. Some of the article is, in a sense, old hat--a rehash of the Southern Strategy's success, and of the costs in today's electoral politics it now exacts. Old news, on the surface. But where Tanenhaus shines is in his tracing of the intellectual core of teh Southern Strategy:

But that history, with its repeated instances of racialist political strategy dating back many decades, only partially accounts for the party's electoral woes. The true problem, as yet unaddressed by any Republican standard-bearer, originates in the ideology of modern conservatism. When the intellectual authors of the modern right created its doctrines in the 1950s, they drew on nineteenth-century political thought, borrowing explicitly from the great apologists for slavery, above all, the intellectually fierce South Carolinian John C. Calhoun. This is not to say conservatives today share Calhoun's ideas about race. It is to say instead that the Calhoun revival, based on his complex theories of constitutional democracy, became the justification for conservative politicians to resist, ignore, or even overturn the will of the electoral majority.

This is the politics of nullification, the doctrine, nearly as old as the republic itself, which holds that the states, singly or in concert, can defy federal actions by declaring them invalid or simply ignoring them. We hear the echoes of nullification in the venting of anti-government passions and also in campaigns to "starve government," curtail voter registration, repeal legislation, delegitimize presidents. There is a strong sectionalist bias in these efforts. They flourish in just the places Kevin Phillips identified as Republican strongholds—Plains, Mountain, but mainly Southern states, where change invites suspicion, especially when it seems invasive, and government is seen as an intrusive force. Yet those same resisters—most glaringly, Tea Partiers—cherish the entitlements and benefits provided by "Big Government." Their objections come when outsider groups ask for consideration, too. Even recent immigrants to this country sense the "hidden hand" of Calhoun's style of dissent, the extended lineage of rearguard politics, with its aggrieved call, heard so often today, "to take back America"—that is, to take America back to the "better" place it used to be. Today's conservatives have fully embraced this tradition, enshrining it as their own "Lost cause," redolent with the moral consolations of noble defeat.

Tannenhaus sketches the evolution of the Southern Strategy, from tactic to ethos, and finds in Calhoun's theory of nullification a way of countering the loss of legitimacy of the viewpoints that cemented the Reagan Coalition:

This remains the perspective of the American right, only today the minority of "concurrent voices" speak in the bitter tones of denial, as modernization and egalitarianism go forward. In retreat, the nullifying spirit has been revived as a form of governance—or, more accurately, anti-governance. Its stronghold is the Tea Party–inflected House of Representatives, whose nullifiers would plunge us all over the "fiscal cliff." We see it too in continuing challenges to "Obamacare," even after it was validated by the Roberts Court. And we see it as well in Senator Rand Paul's promise to "nullify anything the president does" to impose new gun controls. Each is presented not as a practical attempt to find a better answer, but as a "Constitutional" demand for restoration of the nation to its hallowed prior self. It is not a coincidence that the resurgence of nullification is happening while our first African American president is in office.

Calhoun taught, as Tanenhaus explains, that "each state was free to override the federal government, because local and sectional imperatives outweighed national ones." This is, of course, a perfect rational upon which to base grinding majoritarian preferences to a complete standstill--it's positively noble, d'ye see, because the majority is unworthy to lead, and the minority, with right, and justice, and puppies and kittens on its side, must prevail.

Never mind the fact that the philosophy was born in an effort to justify the worst, most systemic violation of human rights in our history; never mind that it prevented a political resolution short of the bloodiest war in American history.

Just say no.

Tommy Makem and the Clancy Brothers deserve better than to have their music associated with this toxic viewpoint, but today's Republicans seem to embrace their solution, but not to the right problem:



Think of them as a palate cleanser.

Humble, 'umble, Stumble, Tumble

These are the four degrees of "humbleness," according to Mary Thorne, the heroine of Anthony Trollope's Doctor Thorne. Mary is, of course, playing off the insincere, fake humility of Uriah Heep in Dickens' 1850 David Copperfield, which antedated Doctor Thorne by eight years. Humbleness, as practiced by Uriah Heep and mocked by Mary Thorne is what I thought of on reading Cardinal Roger Mahoney's blog entry, "Called to Humiliation":

From our earliest catechism days we learn about the virtue of humility. We study it, we think about it; but we don't embrace it.

And why? Because humility is all about self-effacing, about seeing ourselves as far more diminished than we had hoped. As a result, few of us set out to embrace humility for Lent or as a pattern for our lives. Most us us accept a few affronts and neglects as humility, and then move on.

But as disciples of Jesus Christ, we are actually called to the fullness of humility: humiliation, and publicly.

Today's Gospel gives us the stark reality and immediate challenge: "If anyone wishes to come after me, he must deny himself and take up his cross daily and follow me." {Luke 9:23] Daily means each and every day, not now and then on our faith journeys, and on our terms.
....
Given all of the storms that have surrounded me and the Archdiocese of Los Angeles recently, God's grace finally helped me to understand: I am not being called to serve Jesus in humility. Rather, I am being called to something deeper--to be humiliated, disgraced, and rebuffed by many.

I was not ready for this challenge. Ash Wednesday changed all of that, and I see Lent 2013 as a special time to reflect deeply upon this special call by Jesus.

To be honest with you, I have not reached the point where I can actually pray for more humiliation. I'm only at the stage of asking for the grace to endure the level of humiliation at the moment.

In the past several days, I have experienced many examples of being humiliated. In recent days, I have been confronted in various places by very unhappy people. I could understand the depth of their anger and outrage--at me, at the Church, at about injustices that swirl around us.

Thanks to God's special grace, I simply stood there, asking God to bless and forgive them.

Cardinal Mahoney adds "[s]trangely, the more I allow all of this to unfold without protest and objection, the greater the inner peace I feel." In a subsequent blog post, he quotes St. Ignatius of Loyola's Spiritual Exercises, which deserve better, on the three kinds of humility. Cardinal Mahony writes that the third kind, the "most perfect kind of humility,"

is truly a call to humiliation, more than to humility. With this kind, Ignatius raises the bar considerably. He moves from the verb "desire" in the first two kinds, to "desire and choose" in the third kind. In past years I can't recall myself desiring and choosing:

* poverty with Christ poor, rather than riches;

* insults with Christ loaded with them, rather than honors;

* worthless and a fool for Christ, rather than to be esteemed as wise and prudent.

But through God's grace, I am for the first time realizing that I should be praying for the very things from which I cringe, the disgrace I abhor, the fool that I seem.

Where to begin with this? Well, I think Andrew Sullivan makes the first point, writing "He is forgiving the victims of child-rape, and those who speak up for them? Words fail. Anger overwhelms me." Yeah, that's a good start.

I think that doesn't address the deeper issue raised by Cardinal Mahony's posts. Mahoney's encounters with hostile members of the public isn't an Ignatian exercise of seeking to deliberately identify with Christ, and being "fool for Christ." It's an entirely predictable reaction to and result of his own malfeasance and nonfeasance. Being a fool for Christ is, in Ignatian thought, part of the larger exercise of modeling one's own life on Christ, "in all that we do, and in the choices we make." Provoking the entirely understandable and well-founded anger of those wronged by one's own misdeeds is not, with all respect, this. I don't mean to justify any cruelty toward the Cardinal on the part of his interlocutors, but to point out that the decisions that have led to this hostility were not those Christ, who warned of dire consequences to those who "should offend one of these little ones."

I am sure Cardinal Mahony's loss of honor is excruciating. I can find it in my heart to pity him. But this isn't a story of his ongoing discipleship; it's the result of his betrayal of that discipleship. And Cardinal Mahony's efforts to make it an edifying tale of his own mystical journey suggests that he is not in touch with reality, but has strayed into the land of fiction, with Uriah Heep as his guide.

Thurible Cat

(With apologies to T.S. Eliot; based on an apocryphal title proposed by a reader on seeing the new illustration)

Well Betty is a thurible cat,
she swings it within canon law,
the censer flies above her hat
but never leaves her paw,
the smoke does billow through the nave,
and fills the soul with joy,
And Betty does the incense crave,
though the low church mutters "oy".

Betty cat, oh, Betty cat, there's no one like the thurifer,
She's the expert who can produce the smoke,
while you hear the purr of her;
The joss will scent the altar,
she ignites it with welsh coke,
And when you lift the chalice,
the organist may choke.

Passing of a Philosopher

I am sorry to read of the passing, from leukemia, of Ronald Dworkin. Professor Dworkin was a tremendous scholar, dividing his time between NYU and University College, London. His early work critiquing and debating the brilliant legal positivist H.L.A. Hart is some of the best writing I have encountered in legal philosophy--as are Hart's original writing and his response, as contained in the second edition of The Concept of Law. As the Times describes:

Professor Dworkin’s academic work was in many ways a reaction to that of H. L. A. Hart, the British legal philosopher whose 1961 masterwork “The Concept of Law” set out his theory of positivism, which held that law is a system of rules similar in structure to those of games like chess. Legal reasoning, positivism says, is merely descriptive and need not take account of morality.

The two men first met when Professor Hart was by happenstance assigned to evaluate Mr. Dworkin’s final examination at Oxford. The American student excited and scared Professor Hart, his biographer, Nicola Lacey, wrote in 2004, referring to Professor Hart by his first name.

“Herbert went on to express considerable anxiety about this student’s views for the arguments of ‘The Concept of Law,’ ” she wrote. Professor Dworkin’s later work, she added, amounted to “a devastating critical onslaught” on Professor Hart’s “overschematic account of adjudication.”

Years later, when Professor Dworkin succeeded Professor Hart in the Oxford chair of jurisprudence, the older man gave an after-dinner speech quoting from the student paper, which he had saved.

Dworkin's defense of the role of moral thought in constitutional jurisprudence is celebrated by Stephen Griffin here.

Dworkin was an admirable disputant; elegant, polite, giving his opponent his due, but not papering over real differences. He brought a depth of knowledge and a quick, nimble style of argumentation to academic debate that is most rare these days. From the above-linked obit:

In 2011, he published “Justice for Hedgehogs,” an overview and summation. “I am trying,” he said in 2005, as he was working on the book, “to bring together my work in law and my work in political philosophy and moral philosophy and the theory of interpretation and the kitchen sink.”

That ability to synthesize and improvise served Professor Dworkin well, Professor Nagel said, recalling seeing his friend give a “beautifully constructed 50-minute lecture” at Stanford, having been introduced by the university’s president.

“After it was over,” Professor Nagel said, “the president got up again and explained that he had inadvertently picked up Dworkin’s detailed lecture notes from the lectern after introducing him but discovered this only after Dworkin was launched.”

See, now I can believe that. Let me tell you why. Back in 1997, I attended--with the woman who *AHEM* some years later did me the honor of becoming my much beloved wife--a symposium on constitutional law where Dworkin delivered the main paper, entitled "The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe and Nerve," and, afterward watched a small constellation of some of the biggest names in constitutional theory--from Jack Balkin, Dorothy Roberts, Sanford Levinson, Bruce Ackerman and Catharine A. MacKinnon (fair dos, I made my scholarly bones critiquing MacKinnon's First Amendment paradigm, and stand by that critique by and large, but her paper was outstanding in matter and manner of delivery) tear into Dworkin.

Now here's the good part. Dworkin then got up and replied to almost everybody. You can get a sense of the content of what he said from the polished version that was published in the Fordham Law Review, which mostly preserves his conversational style, but to have been in the room while he did it--well, it was one of the most impressive intellectual feats I've witnessed.

On a break before he was due to reply, I ran into Dworkin coming into the men's room as I exited. He asked if I were enjoying the symposium, and I said yes, and then asked if he was looking forward to replying. "Oh, yes," he said, quite calmly, but the smile he shot me was one of pure diablerie.

Rest in peace, Professor. The world of ideas is richer for your presence.

I like the cut of her jib, whatever the hell a jib is...

This



brings back this:



Got, got a new sheriff!

That is all.

Over the Tundra

So, in the wake of last weekend's blizzard, la Caterina and I went to the Navy Yard to feed the kittens, only to find the gate to the expansive back portion where the old base officers' housing has been let go back to nature was locked. Now, the undersigned would have left food under the gate and skedaddled, but la C is made of sterner stuff. She managed to pull herself under the fence (I didn't dare take out the camera!), and then made her way through the snow to the remote Ice Station Kitteh. As this footage shows, she knows all too well that you can't get good help these days:



I'm all heart, me.

As she trudged off into the distance, to feed her little charges, I seemed to hear a long-remembered snatch of music...

God's Rottweiler at Rest

The abdication of Pope Benedict XVI presents something of a watershed moment in my relationship with the Roman Catholic Church, a bit of closure, really. That's because (as I wrote in opening this blog) I was raised and educated in the Roman Catholic Church in a section of Nassau County where RCs make up the great majority of the population, and set the tone for the community. Even though I went to public school through 7th grade, and had a year at St Paul's School in Garden City, my first brush with Episcopalianism, Roman Catholic values as taught in the late 60s and the 70s were the crucible in which my personality was formed, an outward-looking, intellectually curious church that confidently faced the Twentieth Century engaging with the best thought of the age. Also, guitar masses, but nothing's perfect, and, in any event, our church didn't go in for that sort of thing, really. When, in 1978, John Paul II became Pope, and then in 1981, when Josef Cardinal Ratzinger became prefect of the Congregation for the Doctrine of the Faith, roughly coinciding with my own move to a serious and disciplined Catholic high school, the atmosphere began to change. My own faith, including a nascent call to ordained ministry, was deeply shaken by the silencing of theologians such as Charles Curran and Hans Kung, the reining in of the Jesuits (with whom I studied in this time period), the halting of the trajectory toward greater freedom and recognition of women's gifts, and the sudden centrality of anti-abortion politics above all (see this snapshot of the John Paul II era). As prefect of the CDF, Cardinal Ratzinger played a central role in all of these developments.

Now, I should add that of course the Roman Catholic Church has every right to set its own standards of doctrine and belief. It has every right to make the choices it did, and while some members are disaffected, their remedy is to leave. Indeed, Pope Benedict himself predicted, and appears to have endorsed, a smaller and purer church. (More here.) And go I went, as I felt ever increasingly marginalized within the Church of my youth.

I write all this not as an indictment of the Pope--as I say, he has the right, and indeed, the obligation, to teach the truth as he perceives it--but to confess that my view of him may be, indeed, almost certainly is, biased. With that said, is there anything useful I can say regarding his abdication?

Yes, I think so.

First, let me dust off Shakespeare and say that nothing in his [official] life became him like the leaving it; his abdication breaks the tradition of popes struggling on until death claims them and is a triumph of common sense in an era where we live ever longer lives, and in which debilitating illness is a reality that must be faced. I know that many found in the harrowing last years of his predecessor a poignant and powerful lesson--to borrow a phrase from Archbishop John Patrick Foley, "Pope John Paul II taught us how to live, how to suffer and how to die.” I confess that I found the spectacle terrible and not particularly edifying. Most of the failing elderly do not have anything like the resources the ailing Pope had to support him, and lack the freedom to choose how to respond to the last, greatest crisis that gave John Paul's struggle its meaning. Benedict's common sense letting go of ecclesiastical power, and handing over the reins swiftly has a humility that is sacrificial, and savors to me of servant ministry. Rather than exercise power to the last, he will diminish, in order that the work may pass to hands better able to carry the burden. I'm no admirer, but there is a powerful lesson there, as well as a precedent his church may need in future.

I'll leave to those who remain within the Catholic fold to evaluate his ministry as it applies to them; the articles above linked from the Washington Post and the New York Times sketch the controversies tolerably well. But there is one area where, having researched and explicated the topic at no doubt tedious length, I feel obliged to note that as Archbishop, as Cardinal, and, yes, as Pope, Benedict wreaked untold damage not just on the Roman Catholic Church but on Christianity writ large, and that is his role in the sex abuse crisis.

What is extraordinary about this abject failure to live his faith, exercise even reasonable prudence as a leader, and to be a pastor to his congregations is how inconsistent it is with his energetic enforcement of doctrinal orthodoxy. As Jason Berry, whose pioneering reportage of the sex abuse crisis dates back to the 1980s, said in response to the abdication, "As a cardinal, he was known for prosecuting theologians (who differed from church stances), but as pope, he recoiled from punishing cardinals who were responsible for the worst scandal in church history." That's a fair assessment--indeed, it's charitable, in view of Benedict's own failures as Archbishop and head of the CDF.

When I found the Episcopal Church, after some unchurched years, I had become aware of the first wave of the sex abuse crisis, the wave chronicled by Berry. In 2000, the wounds broke open again and then again in 2010. In each case, the lack of consequences for the ecclesiastical superiors who protected the abusers has been breathtaking. Disgraced Cardinal Bernard Law was rewarded with a sinecure in the Vatican and has been reported to have "played a key role in the Vatican’s decision to tighten its grip on the largest association of Catholic nuns in the United States." Disgraced Cardinal Roger Mahony will help elect Benedict's successor.

The lesson I took from this was to cherish much of the Catholic theology, but to reject the ecclesiology. As I have lived in the Episcopal Church since the 1990s, my Anglo-Catholic positions--firm belief in sacraments, mysticism, the value of tradition--have been tempered by reason, and by a focus on the fruits doctrine and acts bear. But the impossible pressure and burden of a monarchical hierarchy--its inbuilt clericalism, its silencing of lay voices, and its tendency towards triumphalism and group think--these are flaws which I hope the Roman Catholic Church will begin to struggle with, even as we in TEC must continue our struggle with them. I hope that they can recognize that the Church on earth is fallible, and must be open to correction, than to hedge its governing structures within a protective wall, shutting out all other voices.

And I hope Benedict finds peace in his retirement.

Book Gloat 2013

So the picture I used to illustrate my previous post about the d'Artagnan Memoirs (or pseudo-Memoirs, I should say) was of the American edition of 1901. But now that my copies have arrived (indeed, they arrived a while ago, but I've been a little distracted with an unusually busy litigation calendar), you can see my own copies.

Here they are, in the nice English 1899 edition (click to enlarge):

And the cover:

And the title page:

Ralph Nevill, eh? Yorkist roots, hmmm? No matter. It's a snowy weekend. Good time for a tale. D'Artagnan's begins in Meung.

To pluck me by the beard.

As a one-time English major, Gloucester's lament "By the kind gods, 'tis most ignobly done/To pluck me by the beard" crossed my mind when when I read about this:

The leader of a dissident Amish sect was sentenced on Friday to 15 years in prison for a series of bizarre beard- and hair-cutting attacks on other Ohio Amish that drew national attention. Samuel Mullet Sr., 67, the leader, was sentenced in Federal District Court in Cleveland for coordinating assaults that prosecutors argued were motivated by religious intolerance. Fifteen of his followers, including six women, were given lesser sentences, ranging from one year and one day to seven years.

The breakaway Amish were convicted last year of multiple counts of conspiracy and hate crimes, which carry harsher punishment than simple assault.

The case is more serious than it sounds, if you picture it from the perspective of the victims:

The series of attacks in 2011 spread fear through Amish communities in eastern Ohio. Followers of Mr. Mullet broke into homes, restrained men and women, and forcibly sheared their victims, sometimes with tools used to clip horse manes.

For Amish, descendants of 18th-century German-speaking immigrants, long beards and flowing women’s hair represent religious devotion and cultural identity.

We're talking about violence, here, in a series of connected incidents, with the avowed intention of taking away from the victims their cultural and religious identities, or as the Times describes:

But in passing sentence Judge Dan Aaron Polster told Mr. Mullet and his co-defendants that they were being punished for depriving victims of a constitutional right, religious freedom, whose fruits they enjoyed themselves as Amish through exemptions from jury service and other laws.

“Each of you has received the benefits of that First Amendment,” Judge Polster said.

That seems to me to have it pretty much exactly right. This was a serious offense, albeit not warranting the life sentences the prosecutor demanded. The judge affixed the most serious punishment on the ringleader, showing mercy to his followers, while still treating them as guilty of a serious felony.

Pistache, Not Pastiche

I am disappointed to have to follow up on last month's post in which I praised the portion I had read of Manchester and Reid's The Last Lion: Defender of the Realm with some more critical thoughts than previously. I stand by the praise for the first half of the book, and the virtues of that section are by no means all lost in the back 9. No, Reid does a very good job in adopting Manchester's style and preserving his voice, while telling the story of Churchill's leadership in the Second World War.

The problem is one of architectonics.

A pre-publication story about Reid's taking up the story quotes him as saying “The war is 85 percent of the story, and that what a lot of people are waiting for.” And that is exactly the problem.

For Manchester, two thirds of the work--Visions of Glory: 1874-1932 and Alone: 1932-1940 took place before World War II. In those volumes, Manchester slowly, painstakingly delineates the growth of Churchill's character--how a shy, sensitive boy lumbered with a disapproving, erratic father and a remote, glamorous siren of a mother forged himself into an apparently extroverted man of action. (A transformation very like that made by the young Theodore Roosevelt). In particular, Manchester excelled at evoking the painful relationship of Winston to the father who often harshly berated him, and whose champion he longed to be, long after his political star burned out. Likewise, Churchill's loving relationship with his wife Clementine--their playfulness with each other, her own insecurities and dashes away from his shadow, and their children--the "kittens" as he sometimes called them--are central to volume 1, and are not lost in volume 2.

By contrast, the nearly 6 years of World War II take up 930 of Defender of the Realm's 1,053 pages of text. Churchill's second premiership (1951-1955) is covered in a mere 41 (pages 996 to 1035), and the last ten years of his life in an even skimpier 16 pages (1037-1053). It's simply not enough. Martin Gilbert took this same period--from V-E day to Churchill's death--and wrote Never Despair, (1988), which I find to be the most compelling volume of his biography, generally less readable than Manchester's. In Defender of the Realm, while some human touches persist, the brevity obscures the extent to which Churchill found, or failed to find, resolution in those last years. And it's not because the material isn't there, or doesn't relate to the themes of the first two volumes.

Let me take one concrete example. In Gilbert's Never Despair, he publishes (at pp. 365-372) the full text of Churchill's essay "The Dream" (the text is online here) which tells the story of a 1947 dream he had, in which, painting in his studio at Chartwell, copying a torn portrait of his father, he "suddenly felt an odd sensation," turns around with his palette in his hand, and sees his father, sitting in his red leather armchair, "evidently in the best of tempers" and looking as he did in his prime. The conversation which ensues between them is one in which Winston, who never discusses his career beyond his serving as a Major in the Yeomanry, tells his father about all of the changes in the world since his death in 1895. He does so without in any way mentioning his role in them. After Churchill describes the World Wars, the Cold War and the Atomic Bomb to his father, Lord Randolph (who has referenced his low opinion of his son's capacity, while casually saying "But of course you were very young, and I loved you dearly") says:

"Winston, you have told me a terrible tale. I would never have believed that such things could happen. I am glad I did not live to see them. As I listened to you unfolding these fearful facts you seemed to know a great deal about them. I never expected that you would develop so far and so fully. Of course you are too old to think of such things, but when I hear you talk I really wonder you didn't go into politics. You might have done a lot to help. You might even have made a name for yourself."

He gave me a benignant smile. He then took the match to light his cigarette and struck it. There was a tiny flash. He vanished. The chair was empty. The illusion had passed. I rubbed my brush again in my paint, and turned to finish the moustache. But so vivid had my fancy been that I felt too tired to go on. Also my cigar had gone out, and the ash had fallen among all the paints.

(Gilbert, Never Despair at 372)

"The Dream" isn't just an amusing fancy; it's Churchill's final reconciliation with his father's memory, and his quietly besting the man he loved with so little return. Lord Randolph sees his son's abilities, and admits that he loved him "dearly," as well as blaming himself for being too harsh to Winston. Winston knows that he in fact has done all of the things that his father is depicted as wishing he had done--he has succeeded beyond Lord Randolph's wildest dreams for himself, let alone for the son he always underestimated. As in life, he cannot tell his father that--but he realizes that his father would wish that success for him and can savor the irony at the end. He puts down the brush, too tired to copy Lord Randolph's portrait, and having left his own traces all over the palette.

There are many such nuggets in Gilbert's last volume, and in other materials regarding the Churchills and Winston's last years. The saga of Churchill's last ministry, and his battle with fluctuating health is told both by Gilbert and in the diaries of his doctor, Lord Moran (disapprovingly referenced, and his testimony rejected in Defender of the Realm, but so briefly that the attempted refutation reads more like a refusal to see the Great Man's weakness, his "Black Dog" than a reasoned position). The travails of his children are only fleetingly mentioned, even though they form a large part of the denouement of this long saga. Clementine's fierce protectiveness of her aging husband, and her destruction of Graham Sutherland's portrait of him, a gift from the House of Commons for his 80th birthday, is fleetingly mentioned, with no sense of the controversial nature of her decision to destroy such a gift, and of her own mildly favorable reaction to the portrait before discovering how much her husband hated it. The welter of war buries the personalities that we have followed for two volumes, good reading though it is.

In short, Churchill's own words "jaw-jaw is always better than war-war" could have been helpfully remembered in this readable and interesting book, one which misses being a masterpiece by losing Churchill's story in that of his times.

Another Day in the Diocese

Back in September, I wrote about the consecration of Bishop Andrew Dietsche, who was elected Bishop Coadjutor of the Diocese of New York. It turns out that the service was recorded for posterity, and has a cameo appearance at the start by a certain feline commenter on ecclesiastical matters:



This Saturday, Bishop Diestche was installed as the 16th bishop of New York. Where I was an acolyte at his consecration, I was, as a postulant, processing among the clergy at this ceremony. Fortunately, my good friend Tim Martin, a photographer whose work I greatly admire, was on the case, creating a record:



It was my third time forming part of the procession at the Cathedral, and my second as a postulant. The experience has been awe-inspiring each time--making me feel at once honored to be a small part of this Diocese, and privileged to observe its history taking place. I post a fair amount of political stuff, silliness, and maybe even sometimes veer into the sardonic. Let me avow that the joy I am finding pursuing this calling is dissolving much of the shell two decades in the hurly-burly of the law helped me build. It is impossible to even affect, let alone take, a nil admirari view of life when surrounded by so many admirable people as I have found among the clergy and laity of the Diocese of New York.

What the Hell, Hero?

When I was in high school, I read Alan Dershowitz's The Best Defense (1982), which strongly influenced me in my desire to do criminal appeals for the defense. I'd previously read about Clarence Darrow, and read some opinions by William O. Douglas, but Dershowitz helped give me a realistic goal. And, indeed, I did do criminal appeals for the Legal Aid Society for three years after I graduated law school, an experience which was formative for me. Likewise, Dershowitz's strong First Amendment advocacy in The Best Defense was one of the earliest things I read on the subject, and between Darrow, Douglas and Brennan, Dershowitz helped shape my ideals. All of which is to say that I have an abiding affection for Alan Dershowitz, and owe him much.

I was aware of his profoundly disappointing advocacy of torture warrants, but while vehemently disagreeing with it, accepted (and continue to accept) Dershowitz's statement that his goal was to reduce the amount of torture that would in fact take place by defusing the "ticking time bomb" argument for torture, and to create accountability for torture. Wrong, grievously wrong, in my view.

One of my morning blog reads led me to the rather embarrassing to both e-mail exchange between Dershowitz and Glenn Greenwald (in fairness, Dershowitz begins the descent into rancor by his response to Greenwald's civilly-worded initial post.) In the article to which the e-mail thread is linked, Greenwald refers to, among other reasons for Dershowitz's "controversial and polarizing" status, his "chronic smearing of Israel critics such as author Alice Walker as 'bigots.'"
Perhaps rashly, I followed the link, not having encountered Walker the bigot in my own admittedly far from complete reading of her oeuvre.

In June 2012, Dershowitz indeed wrote an op-ed piece titled "Alice Walker's Bigotry," which makes its case as follows:

Pulitzer Prize-winning author Alice Walker, who has a long history of supporting terrorism against Israel, has now resorted to bigotry and censorship against Hebrew-speaking readers of her writings. She has refused to allow The Color Purple to be translated into Hebrew.

This is the moral and legal equivalent of neo-Nazi author David Duke disallowing his books to be sold to Black and Jewish readers.

Well, no. It isn't, really. because David Duke's books would be, one thinks, promoting bigotry in the text, and Walker isn't stopping anybody from buying the book in English. Or, for that matter, in Hebrew, if they buy the previous Hebrew translation published in the 1980s.

Dershowitz has a proposed remedy for Walker's refusal to license a new Israeli Hebrew translation:

There is an appropriate moral and legal response to Walker’s bigotry. The publisher who had sought permission to publish Walker’s book in Hebrew should simply go ahead and do it – without her permission and over her objection.

Walker could then sue for copyright infringement, and the issue would be squarely posed whether copyright laws, which are designed to encourage the promotion of literature, can be used to censor writings and prevent certain people from having access to it, based upon the language they read.

And how does Professor Dershowitz think that case would turn out:

The laws of copyright were certainly not designed to encourage or even permit selective censorship based on national origin or religion.

I am confident that reasonable courts would rule against Walker if she sought to sue a publisher who refused to go along with her bigoted censorship. Inaction in the face of bigotry is unacceptable. Alice Walker’s bigotry should be responded to by turning her own weapon – the written word – against her. Her writings should be published in Hebrew, whether she likes it or not, and the royalties should be contributed to the NAACP and other civil rights organizations that understand the true meaning of fighting against bigotry and real apartheid.

Now let me be clear: I have not studied Alice Walker's history as an activist, and do not know whether her opposition is principled and admirable or as unpleasantly motivated as Dershowitz believes. But that the man who once vigorously defended Stanford Stalinist Bruce Franklin can advocate government-enforced expropriation of an author's intellectual property--complete with forced donation of the royalties therefrom--says nothing good about Dershowitz's current views on free speech, and where his intellectual journey of the past dozen years has led him.

Tighty Righties

This week's theme: Right Wing oppositionalism, for the sake of oppositionalism.

We begin with the President's statement on International Holocaust Remembrance Day, in which he said:

On January 27th, International Holocaust Remembrance Day, we honor the memories of the 6 million Jews and millions of other innocent victims whose lives were tragically taken during the Holocaust over sixty years ago. Those who experienced the horrors of the cattle cars, ghettos, and concentration camps have witnessed humanity at its very worst and know too well the pain of losing loved ones to senseless violence.

Pretty uncontroversial, right? Pretty much nobody out there wants to argue that point, right?

Well, nobody except the stalwart Eliana Johnson of the National Review:

Nazism may have been an ideology to which the United States was — and to which the president is — implacably opposed, but it is hardly “senseless.” By the early 1930s, the Nazi party had hundreds of thousands of devoted members and repeatedly attracted a third of the votes in German elections; its political leaders campaigned on a platform comprising 25 non-senseless points, including the “unification of all Germans,” a demand for “land and territory for the sustenance of our people,” and an assertion that “no Jew can be a member of the race.” Suffice it to say, many sensible Germans were persuaded.

Many sensible Germans were persuaded? Many sensible conservatives might have thought twice before hitting "send,"I should have thought. Can we agree that the sensible Germans were the ones, y'know, who were not persuaded? No? No, it seems; she responds to, in her own words, "[p]undits and non-pundits on both the left and the right [who] have reacted with derision and horror" to her post by asserting that their reaction not only vindicates her point, but is central to it. (Johnson is, at least, aware of all internet traditions)



The House that Buckley Built also is featuring the, er, counterintuitive argument that the Obama Administration's expanding the exemption from providing contraception coverage under the ACA is a greater affront than the narrower exemption. Why? Um, because the insurer-funded, separately paid for plan would be administered by the same insurance companies that provide the employer-provided plan that does not have to provide contraception. For reals. (A more fact-based account of the proposed amended rule is here.)

Elsewhere, the NRA has released an enemies list. As Wonkette astutely notes, you're almost certainly on it. But, hey, you're in good company, along with:

*National organizations of pediatricians;
*nurses;
*doctors;
*teachers;
*cops;
*Jews (B'nai B'rith, Central Conference of American Rabbis, Hadassah, Jewish Labor Committee, etc.);
*Episcopalians;
*Catholics;
*Lutherans;
*Unitarians;
*Vulcans. Ok, Nimoy, but not, strangely enough, for this:



The NRA lists pretty much every celebrity in Hollywood, plus Mike Meyer's wife (his pets are not yet singled out for obloquy, so the NRA's legendary thoroughness seems to be eroding).

What can I say?