cheese it, the cops!

letter of the law

were i arguing for same-sex marriage as a constitutional right before the supreme court (which i admit seems unlikely), and scalia pointed out to me that the framers, or the framers of the 14th amendment, could not possibly have intended same-sex marriage as a right, i would proceed as follows. so far as we can tell, they certainly did. right, the question never arose. but one plausible way to measure the intentions is by the plain sense of the words: their plain sense now, and their plain sense then, which we can work on if you like. if they said anything like what they intended to say, they said that you can't extend important basic rights to some people and not to others. they could not have seen all the possible future applications of that principle. nevertheless they endorsed it, and it entails that same sex couples have the right to marry. the last thing you need to do is head off on a 'living constitution' thing or whatever. just don't concede, either way.

oops we kicked your ass

i have been doing research and working on the wikipedia entry for my great-grandfather, herman bernstein (he's my mother's mother's father). what an unbelievable life! i thought i wrote fast. for one thing, the dude was super-jew. for example, henry ford, with whom he locked horns for a decade, called him 'the messenger boy of international jewry.' he was rolling across russia during the revolution, interviewing john reed and leon trotsky.

even a superficial skim of the list of his correspondence (housed at the yivo center for jewish research at the center for jewish history) reveals letters to and from Samuel Clemons (Mark Twain), Sholem Aleichem,Andrew Carnegie, Leo Tolstoy, William Howard Taft, George Bernard Shaw, Max Nordau, Louis Brandeis, John D. Rockefeller, Louis Marshall, Israel Zangwill, Henri Bergson, Arthur Brisbane, Mordecai Kaplan, Henry Morgenthau, Sr., Gifford Pinchot, Theodore Roosevelt, Woodrow Wilson, Franz Oppenheimer, Felix Frankfurter, Warren G. Harding, William Randolph Hearst, Herbert Hoover, Constantin Stanislavski, Leon Trotsky, Arthur Balfour,Thomas Edison, Albert Einstein, Henry Ford, Arthur Goldberg, Adolph Ochs, Romain Rolland, Julius Rosenwald, Benjamin Cardozo, Yosef Yitzchok Schneersohn, and Franklin Roosevelt.

as herman might have put it: jesus a vehicular christ.

herman bernstein as a sensitive young poet

 and as a mature ass-kicker

 

when my mother (joyce abell, b. 1925) was 5, she was sent by her parents, alone, on a ship to albania, where herman was the ambassador. she still remembers the spectacle, the dresses etc., at the court of the magnificently attired zog, king of albania. 

here are a few of the other writers in my lineage, on both or all sides, whether they arrived with the puritans in 1637 or came to ellis island from the russo-german border in 1893. some were protestants, some were catholics, some were jews (100% on my mom's side). most were atheists, though, whatever their heritage. some were communists and some were republicans and some (well...) were anarchists. novelist and short story writer grace sartwell mason (my great great grandfather's sister; one of her books is women are queer); herman's brother hillel bernstein, novelist and new yorker contributor; novelist etc murray gitlin (my grandfather and herman's son-in-law); my grandfather franklin sartwell, columnist for and editor for the washington times-herald and the washington post; my father franklin sartwell, jr., reporter and editor at the washington star, national geographic, science news, and defenders magazine; herman's son david, writer and editor for, and owner of, the binghampton sun. there are others!

dang

i was wrong about joe paterno.

we have liftoff

12:22 well obama was notably wooden.

12:15 have to say, no matter what your view, there is something hopeful about roberts the turncoat. sometimes you wonder whether anyone is capable of independent ratiocination. it's just possible that scalia managed to alienate the chief justice.

10:21 it would be funny if roberts upheld on the grounds of the power to tax. the obama administration wasn't going to make that argument because then they would be portrayed as raising taxes. in other words, they precluded themselves from making the winning argument for reasons of political vocabulary. then they got bailed out: well, then we'll make the argument for you.

10:18 cnn has reported that the individual mandate has been struck down, that the whole thing has been upheld, and that parts have been struck down, parts upheld. geez y'all.

10 am: pretty wild counting down moment by moment to a supreme court decision, like a space launch. msnbc is still running paired political consultants, the last people you want to hear parse something like this.

constitutional cred

here's an example of the credibility index in action. actually on liberty-type grounds i oppose the individual mandate in obama's health insurance bill. also i think it's unconsitutional. but if i assert that it is unconstitutional, given that i think it's wrong on other, more general grounds, you should suspect that i twisted the evidence on the constitutionality. not that i necessarily have, but i had a motivation to. now before you try to grapple with the arguments, you should regard someone who opposes the mandate but thinks it's probably constitutional as particularly credible; you should eyeball their constitutional interpretation as a sincere attempt to deal with the available info. likewise someone who supports the mandate with all the fervor of a great and generous soul, but who doesn't find any authority in the constitution to do it. now, are there any such people?

pardon me?

this deal where haley barbour pardoned myriad felons, including murderers, is quite astonishing, and he seems to have done it without explanation. this is the former chairman of the republican party we're talking about, a rock-ribbed conservative in one of the nation's most-right states. when you think of mississippi, you're more likely to think of prison farms - with charlie patton singing the blues - than forgiveness. were i cnn or the washpost, i'd be sending a little squad of reporters, instead of trying to cover the thing from texas. there is a big story here, and many many little ones (the stories of the criminals and of their victims, etc.). 

is law school necessary?

here is a good question. and here is a good answer.

bent

one thing i don't understand about these executions: why the family of the victim and also the law enforcement people are entirely immune from evidence of innocence: free of doubt even when serious doubts have been raised. how can you just want someone, anyone to pay? surely to take any satisfaction in justice/vengeance, it is all-important that you actually get the right person. i can understand wanting the person who killed your son or whatever to die. and i think that some people deserve death. what i can't understand is manifesting along with these attitudes an indifference to the evidence: if troy davis was innocent, well then the person who killed you son is still running around. why work on producing in yourself total certainty in the face of good reasons not to be certain? i guess there must be some psychological mechanism involved because you see this all the time: whomever is the suspect, however flimsy the evidence, the family of the victim just wants a conviction/maximal punishment.

retreating to where no evidence counts

one of the best defenses is when you appeal to your own, obviously vast, capacity for self-delusion. edwards: "I never, ever thought I was breaking the law." that is, if you can fool yourself into believing that you're not doing what you obviously are, you're not culpable for it. and if you can fool other people into believing that you've fooled yourself into believing that you're not doing what you obviously are, then they can't hold you responsible for it. always bring it around to your own subjective states, which cannot be examined by any existing procedure. 

against the law

no one has a lower credibility index than the inhabitants of the upper regions of the legal profession: professors of constitutional law, supreme court justices, and so on, because no one short of scholastic theologians has as elaborate a machinery for making things come out however they want. no one has more intentionality about rationalizing their way to whatever factual claims prop up their ideologies: infinite equipment of quibbling hermeneutics. and no one is less honest about what they are actually doing, less self-reflective, less sincere even as they throw out a volcano of passion about how they are constrained by rules and documents and precedents and filter out their own opinions. really it's the least wholesome thing one can imagine: a thousand layers of self-delusion.

ronald dworkin is a beautiful example (sorry about the pay wall at nyrb). give him a liberal court and he'll give you back a living constitution. he'll be impressed by the quality of the reasoning almost no matter what, if he agrees with the conclusion. give him a conservative court and he goes fundamentalist: he's outraged by every slight departure from precedent.  but here all he does is attack the reasoning for every decision whose result he rejects: that is, every decision not in keeping with a left-liberal ideology, while describing the dissents as 'devastating' or whatever.

there would be a simple way for him - or for any of us - to establish a provisional credibility: show the fallacies or weaknesses in arguments for positions he agrees with, or the strengths of the arguments for positions he disagrees with, in a serious way. people need to understand this; it is so entirely clear. in its absence, just realize that there's no commitment to the truth. you know what ronald dworkin thinks about the quality of a judge's reasoning by knowing ronald dworkin's political orientation, but that political orientation is irrelevant to the question of the quality of the reasoning. the right response - obviously, i tell you - is just to dismiss the whole huge body of work on such matters.

on the other hand what the conservative justices are doing is exactly the same thing. in the context of american jurisprudence there is always a way to get wherever you want to go: there are thousands of precedents and a hundred different approaches to precedents; a thousand interpretations of the constitution, and a hundred different approaches to constitutional interpretation. 

so what you end up with is one of the most pathetic spectacles imaginable: all these apparently sort of intelligent people engaged in a series of arguments that are just at their heart virtually demonstrably either breathtakingly disingenuous or disturbingly self-deluded. in no area of human life does people's account of what they're doing have less to do with what they're actually doing. a waste of brain-power and paper: something amusing or disgusting, but with a palpably inverted relation to the truth.

if i haven't been writing about bradley manning, it's not because i haven't been watching. i will remind you of article III, section 3 of the constitution: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." i'll say this: it is far far past time that bradley manning faces his accusers in open court. effectively, he has been convicted and is being confined and brutalized for treason without any judicial proceeding that i have been able to detect. they are constitutionally obliged to try or release him, right now.

what's better than a law (or constitutional amendment!) banning an act that no one ever even considered performing? how about a federal court blocking the enactment of such a law? really this need never end, though we may have to invent whole new layers of authority to keep overturning and reinstating it. but this idea opens up vast new areas of the law, of just the sort the lawyers are so good at thoroughly exploring: now all we have to do is enumerate those things that it has never occurred to anyone to do, so we can outlaw all of them, not to mention get busy doing them. it'll be fun!

well, if i had to guess, i'd guess that anita hill was telling the truth. but the rather bizarre interaction  between hill and virginia thomas tells you more or less all you need to know about law professors. if ms. thomas wanted to offer an "olive branch," then suggesting an apology was the wrong approach. but i love hill's response: call campus security! someone left a voicemail on my phone requesting an apology! campus security turned the matter over to the fbi, suggesting that perhaps a law professor is running brandeis's security operation. i don't know: why don't y'all pretend to be human beings, or see whether human action is possible without litigation? anita hill considers anything that irks or disturbs her a crime, which might be a problem with the initial accusations as well.

so if pastor jones was going to burn copies of the koran, and the federal government intervened, even with a pretext, i think the jurisprudence is pretty clear that that would violate constitutional protections on freedom of speech. but as i say you'd be taking federal action to prevent insult to islam. that violates the establishment clause.

i think the left's discovery of the horrors of judicial activism is as disingenuous as the right's in the last goround. or really, moreso. do you think if the current court had a liberal majority, or was limiting campaign financing by corporations in some total way, for example, that the left would be howling? the thing is usually, at least, just a stalking horse for one's own political agenda. i'd like to see a leftist attack judicial acticism of the left and the right attack jusicial activism of the right: that's the only way you seem even vaguely sincere.

wildly, coburn has her cornered on natural rights. she seemed skeptical of the whole idea. so you don't agree with the declaration of indepenence.

got to say the dems have pre-empted the whole 'activist judge' thing, turned it around. this is a crisis for people like cornyn, who have no other phrases to utter.

one thing that occurs watching the kagan hearings: i am very glad i have not lived her life. so when they ask her about memos she wrote in the clinton admin, strategizing on avoiding a ban on partial-birth abortion, she's all like 'i was working for a president who had very definite views. my job was to push forward his agenda.' when she was dean at harvard law school and sought to exclude military recruiters on the grounds of 'don't ask/don't tell,' she was only trying to enforce the 25-year-old non-discrimination policy, not embodying any particular position. as solicitor general she argued that prisoners of the u.s. in afghanistan and iraq do not have habeus corpus rights. we should make no assumptions about her own opinion on this matter: she was representing her client. as a supreme court justice all she will do is read and apply the constitution/laws as they stand, without regard to her own opinions.

it must be hard to live a life in which you are never permitted to think independently. one might be tempted to call it a slavish life, and to boot, an unintelligent or at least incurious life, though these would be odd things to say about so eminent and famously smart etc person. really i think that an institution that demands at least the simulation of automatism of this kind is profoundly dehumanizing; it ought to begin to make one sceptical of bureaucratic and in particular legal institutions; they rest on a lie, or a demand of total inauthenitcity. if i was sitting there with the purpose of completely disguising even the sheer fact that i have opinions, i would feel compromised, sullied.

coburn is surprisingly good, though.

wow durbin is actually addressing the "crack/powder disparity," and consequent racial composition of american prisons.

cornyn is giving a speech, in  which kagan's responses seem like impertinent interruptions. not only that, he's giving word-for-word the same speech sessions did; an ultra-primitive "do you believe the courts can change the constitution?". what is the matter with these people? how could you just make it impossible not to conclude you are a grandstanding idiot? these are the best republican legal minds; wasn't cornyn a state supreme court judge? and yet they're just reciting someone's memo rigidly, precisely like dummies.

the judiciary committee really needs to be grilling me: rule of law? you mean the rule of little squiggles on pieces of paper? an opportunity to educate the public!

listening to the kagan hearings on my way to teach. well you know she seems ok, but she's not sweating brilliance as one sometimes thought in the buildup. but she seems comparable to sotomayor, for example: similar really. kohl actually sounded exasperated with her: "what is your passion? what do you really care about?" "deciding cases one at a time on their merits." really? sessions can be an unbelievably incoherent partisan twit, just endlessly repeating the same one idea about whether judges should legislate. but his questioning on the harvard military recruitment thing was quite pointed and probably pretty effective in focusing criticism; he seemed to know a lot about it.

obviously, i am enthusiastic about the idea of having rand paul in the united states senate, and the current libertarian mood/move.

i am kind of sorry to see arlen specter go; i liked his unpredictability and his frankness; one recent example: he was pretty straightforward about his reason for shifting parties; that frankness came back to haunt him in sestak's ad: "I'm switching parties in order to get elected." on the other hand i remember his questioning of anita hill during the clarence thomas hearings: "do you expect us to believe, miss hill, that a man who went to yale law school, an eminent judge etc, would make rude sexual advances or watch pornography?" either remarks like this betrayed a total confusion about the moral power of education and social eminence, or it was a completely absurd defense for specter's own presumed transgressions. at any rate, it betrayed a complete misapprehension of the power of or justification for social status.

one of the many things to attack in barack obama: he is a sexist, a gender traitor! weren't there any men qualified for the supreme court? christ.

well, it's kind of interesting that the supreme court is dominated by catholics and jews. i guess those are legalistic traditions - canon law and the whole idea of torah - whereas even though there's plenty of protestant law and legalism, there is also a suspicion of law within the radical protestant tradition. blah blah blah immigrants' kids go to law school. at least there are no black people or women on the court.

i think this is how you actually engage in jurisprudence: supersede the supreme court by just gettin up off your ass and doing something about it.

i have to say brooks is very right about students, especially the best, these days: "If they had any flaw, it was that they often had a professional and strategic attitude toward life. They were not intellectual risk-takers. They regarded professors as bosses to be pleased rather than authorities to be challenged. As one admissions director told me at the time, they were prudential rather than poetic." and one might point to the culture of standardized testing - again bushobama's only idea in education, or for the eradication of education - as a symptom and a cause of this slavishness.

but in addition to finding that disturbing ("What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess"), i find it surprising that someone is a law professor at chicago or a dean of the harvard law school, without an elaborate record of scholarship. maybe i don't understand the standards operating in that zone of the academy. can you be those things as mere academic entrepreneur?

watcha readin, little crispy? reading (and teaching) paul butler's book let's get free: a hip hop theory of justice. butler is a relatively young black former federal prosecutor who's now a law prof at george washington. it's quite a remarkable book - or at least butler is a remarkable figure - in many ways. one would think of him as a liberal, among other things for his attack on high incarceration rates, his advocacy of drug decriminalization, his attack on racial profiling, etc: these are in fact the central themes of the the book.

if we really thought of the left-right political spectrum as coherent, however, there are massive surprising infusions of conservatism. for example, his "theory of justice" is purely unabashedly retributivist. he thinks that punishing criminals is a matter fundamentally of vengeance; that's justice. well i've often argued for that position, which gets rid of so much easy self-deceived blahblah. he purports to get this - as well as a heartfelt phenomenology and critique of a society that locks up so many of its people - from hip hop music. (he writes: "I fell in love with hip hop music on a crowded dance floor at Yale." well, that's our america, I suppose; yale is of course also where easy-e earned the notches on his ak.)

the position butler is most noted for is "jury nullification"; he thinks that american juries have a right to decide not only on the guilt of defendants, but on the rightness of the law they allegedly violated. his view cutting to the chase is that juries should refuse to convict young black men of non-violent drug offenses, even when they did commit the offense as defined in a criminal code. (jurors for justice)

the idea of jury nullification is straight-up don'ttreadonme teaparty hyperamerican reactionary excellence. in 1852, the great anarchist/legal scholar/abolitionist/argumentative prodigy lysander spooner published a gigantic book tracing the practice from magna charta to the fugitive slave act (when juries refused to convict those who harbored escaped slaves, though that was clearly against the law): an essay on trial by jury. (i'm gonna write butler to make sure he knows this work; well, i assume he does).

let's get free is a really passionate attack on our carceral society and a plea for reform. now it has some limitations. butler argues that lower rates of incarceration would make us safer. he takes himself to have "demonstrated" this, but really the wielding of statistics and so on, while suggestive, is impressionistic or even kind of careless; butler does not really go for the throat with an attempt at systematic knockdown argument. one reason for that is that the book is intended as a kind of light popularization of legal theory. that's what really accounts for book's other great weakness as well: there is very little depth of scholarship of any sort; there isn't even an index. this is particularly glaring on something like jury nullification, a serious defense of which would require much more care and erudition than butler displays.

but i have to say that the basic idea of american liberties as a way to address racism and the prison-industrial complex is extremely compelling. butler surprises over and over; it's just a very creative way through the territory: fundamentally original. how many law school deans/federal prosecutors are going to come out in support of the baltimore stop snitchin movement? butler's discussion is remarkably nuanced but also excellent common sense.look one thing you have to admire and never see is someone with no particular affiliation; someone who thinks beyond or before the left/right split.

 i also think the light touch and quick polemics are basically why my students are actually enjoying reading the book, and actually do seem to be reading it. if i were teaching trial by jury, i'd have two freaks out of 37 students reading along.

quoted by butler: i'd free all my sons. still living for today, in these last days of time.

once this ksm trial fell out in nyc, it flaked out everywhere. i don't think they will ever bring him to a criminal trial. it's way too late. first of all, he was tortured in custody. second, the president has said he is guilty and will be executed. put him on trial and the case might well be thrown out. and when it comes right down to 'we're going to do it right here, in glen rock pa!' everyone's going to go all nimby on you.