cheese it, the cops!

Joe Biden, Rattletrap

The video version.

 

sartwelliana, 2018

Some of my writing this year, especially for splicetoday:

Music: on my stereo and in  my head, a lot of the year was occupied by classic gospel, say 1940-80; gospel music as women's liberation, 80th birthday tribute to the great Shirley Caesar, country enters its postmodern era (2018 top ten),  hippie goddesses of the 1970s (Bonnie Raitt, Maria Muldaur, Linda Ronstadt, Tracy Nelson), stoner country (Commander Cody, Asleep at the Wheel, NRPS), Chrissie Hynde, best pop artist of the last 40 years, happy birthday, 'stand by your man'.

For whatever reason I didn't do a shitload of humor this year, but I did pen a stirring tribute to Philip Roth's obituarists. I tried to rehabilitate my tarnished brand with an apology to America.

I tried to sketch out my basic politics in a triptych: why i am not a leftist, why I'm not on the right, why i am an anti-authoritarian. 

Attacks on pc, identity politics, representation etc.: the dead end of demographic politics (wsj), dna and politics, kanye west and susan collins: shredded by intersectionality, "looks like me", 'researcher' announces stunning result: we're all the same, King meets Zuckerberg, pc entertainment as medieval allegory, bad words, the punditry of personal destruction, self-esteem and bauxite, Anna Deavere Smith and the ridiculous reception of Black Panther

Gender: conversion therapy isn't the cure for toxic masculinity (wsj), boys, we will survive, we old dudes should mistrust ourselves, holidays and gender

'Why They Suck" is winding down, but I got to michelangelo, harry potter, bill gates, W.E.B. Du Bois, and Richard Serra.

Religion and spirituality: (see gospel music stuff, above), beckoning god from his fastness, i advocate the doctrine of original sin (nytimes), priestly abuse is central to catholicism .

Personal/philosophical excursions: fall in the south mountain fruit belt, weekend dad, a very short memoir, how to be original, how much distance?, review of james c. scott 'against the grain', george lakoff and the pseudo-science of neuropropaganda (wsj)

Politics, Trump, and so on: perjury factory, fuck me, i'm going to vote democrat tomorrow, apocalypse in the theatrocracy, re-narrating american history is an old persuasive tactic, american institutions have earned our distrust (wsj), two (or three) kinds of dishonesty, slavery, immigration, and civil disobedience, grooving on the world order in danger, america's intelligence coup, the domestic threat to american elections, american politics is filthy, polarization and the counter-factual crisis, how to argue with a young socialist (wsj), i want donald trump to hold me while i cry, politics and geography, children: our treasures our targets, trump and brexit as repudiations of technocracy

How Would You Draw History?

no way out

obama's press conference on the supreme court non-decision on his executive orders on immigration was a good example of what's wrong with american politics. first of all, the relentless focus-grouped yipyap: "commonsense commonsense commonsense; dreamers dreamers dreamers; hardworking hardworking hardworking.' then, immediately using the whole thing to bash republicans and turning straight to electioneering. so, he's blaming republicans for the partisanship, and offering a dem congress and white house as the solution. how has that worked before? they'll just spend the next years running again, by bashing the republicans with a collage of robotic phrases and of course vice versa. there is no way out within the two-party system and all anyone on either side cares about is aggrandizing themselves by vilifying others. that's not a decent way to live; these are not good people.

smarter

hillary clinton right now: 'i went to 112 countries as your secretary of state, including many places where dictators, or special interests, called the shots.' boy she was angry and passionate, arguing that obama should nominate a supreme right now, because this is a democracy, a beacon of hope in a benighted world. but some lessons you can learn without ever leaving home. and some people can mint brilliant ironies without even trying to, or while trying with all their vast ability not to. i'm voting for her because she's so much smarter than trump.

the uses of antonin scalia

just speculating now: the beloved justice scalia was poisoned, probably by a cabal of anti-originalist legal scholars centered at harvard law school. be this as it may, everyone is pointing out with their sudden generosity that scalia revived fundamental questions about constitutional interpretation. i think he had a pretty primitive theory. also i think most of his opponents have a pretty primitive theory, and a pretty primitive refutation of his theory. so, there are many cases where the original intent of the constitution is, for example, not singular. i will point out that it was a committee production involving an extremely wide range of political and legal positions, enshrining a number of compromises. there is not always or usually a clear or single intent, and what hamilton thought the thing meant and jefferson/madison were probably as different as what cruz thinks it means and sanders. also, even if we had a completely clear intent, the question would certainly remain of what we owe to that intent and why. also, it's not the case that the alternative to originalism is 'anything goes', as scalia himself liked to assert. there are many immediately obvious middle ways through.

however, i understand why scalia wanted to go fundamentalist, because specifically the left actually really doesn't care about the constitution at all, thinks we owe it nothing, and regards it only as an annoying barrier to the state annexing more and more aspects of everyone's lives: i.e. it is a barrier to progress. well, i am definitely enthusiastic about shoring up all barriers to progress thus construed. i think the constitution enshrines a vision of strictly limited governement that is what is distinctive about the american polity, and is also the sort of thing that in a pinch might save you from dying at the hands of your own genocidal megalomaniacal state. it's been an extremely useful hedge against toalitarianism, and if the left really could just ditch it out they'd start a cultural revolution.

also, the anti-originalists often say things like this: it is impossible to know the intent of the framers! what are you going to do, read the mind of people who have been dead for centuries? what a useless, fantastic notion, etc. please. are you telling me, for example, that it is impossible to know anything about the intentions of john milton as you read paradise lost, or david hume as he wrote the treatise of human nature? they both actually kind of told you what their intent was, and a lot of it is pretty darned legible right in the text. we interpret the intent of old-timey authors all the time. it's a difficult matter, and you have to get into the details, and maybe there will always be some lacunae. but really, interpreting the intent of dead people is a perfectly ordinary human activity, and for example literary scholars do it all the time. you could start with careful etymologies: how were the terms 'militia' or 'liberty' or 'speech' used in various sorts of texts of the day, and so forth. please don't tell me that you think such things are a priori impossible.

and then, plus, it's perfectly true, as scalia said, that plenty of people on the left really just want the thing to say whatever they want it to say, and have developed a theory of interpretation that would make that possible. of course, their theory makes all interpretation of any text impossible. i would say in both cases, cutting to the chase, or peeling back the layers of obfuscation, we really have very primitive and ridiculous competing theories of interpretation. i don't know: read gadamer's truth and method or something and get back to me. fuse the horizons, baby.

i would prefer not to focus on intent, which is not the same as meaning. intent could be relevant. but language is public, not in your head. i would prefer to think about the meaning of text in its original context, and it is in that context that whatever intentions were floating about were formed. again, you'd start with the ways particular words were used, not in madison's head, or not only in madison's head, but in the culture, conversation, and written texts of the era. seriously, i could say something i did not intend to say - i often have - but it wouldn't follow that my utterance was meaningless or that it might mean anything at all. we know, in our rough way, how to figure out what people mean from the words they use, and so on, and this is partly a matter of what those words mean in the public language. what they meant in madison's head was fixed by their public uses, though of course the public uses might be multivalent, ambiguous, or obscure, or madison might have had a self-serving or mistaken or pejorative use of some particular word or phrase. that madison was pretty darn clear and competent in the use of language, however.

anyway, yes, pragmatically, i want to be able to appeal to a strong constitution to defend against encroachments on my speech and so forth. i feel that it has kept me out of the re-education camps. overall, it's a pretty useful and good thing, and it has sort of helped fend off authoritarianism - and hence murder, pain, rape, and extreme inequality - though actually it has been chewed up to move in that direction in a pretty consistent arc. if it's got to be at this level, then i guess i'm going with originalism. but really, it can't be at this level; seems like law profs should be able to do better or could think more carefully or devote themselves to something other than mere partisanship.

 

surveil this

you'd have to say that this and this are promising, though relatively small, smackdowns of the surveilance state. nothing has ever been more obviously unconstitutional. nothing would more obviously make george washington go fetch his flintlock, raise an army, and engage in violent insurrection, as he did in the good ole days. 

i don't know what to say about the failure to indict in the nyc garner case except that it is incomprehensible. i do want to remark from the anarchist perspective that exemption from the law is of the very essence of police power.

inappropriation

somehow the united states went from 'congress shall make no law abridging freedom of speech or of the press' to “There are a lot of names and descriptions that were used over time that are inappropriate today,” FCC Chairman Tom Wheeler said. “And I think the name this is attributed to the Washington football club is one of those.” in other words, we used to value a bold brawling discourse; now our speech is run by little schoolmarms: 'inappropriate!' honestly, that something is inappropriate, other things being equal, recommends it. i suppose 'appropriateness' is the constitutional standard on prior censorship of expression in our jurisprudence?

legal advice for free

i know what you're wondering. you're wondering, what does that asshole crispy think about hobby lobby? as you may know, i am highly in favor of conscience or religion-based opt-outs on various government mandates, a position i defended here and there. this is not as clear a case, and the conscientious conduct of both owners and workers is affected. but still i am going at it this way again. you should ask yourself how you would respond if by law you were required to implicate yourself in something you yourself regarded as terribly wrong. 

and trying to go from anarchist to legal "mind", i would say this: imposing this requirement across the board obviously comes with social costs, for example it really does place a burden on the religious freedom of people like the owners of hobby lobby. it is a matter on which coercion by the state must be justified by a substantial social or state interest. that is, the costs of allowing such exemptions must be significant even for the matter to be legally controversial. now in weighing these costs i do not want to hear about hypothetical scenarios in which general motors or apple is refusing on religious grounds to offer various benefits. much less do i want to hear various more catastrophic scenarios. i want a relaistic assessment of the real costs. in this case, some women will not be covered by their employer for four drugs. so if they are unable to obtain those drugs, or have to pay exhborbitantly for them, that is a cost, and then the question would be, what are the various ways of ameliorating that? and the actual precedent as it might actually be taken up in an actually capitalist economy is relevant if realistic. i just don't think the sky is falling if the administration starts granting such waivers.

 

time to prosecute yourselves

let's say that the "independent executive review board" (whatever that may be, exactly) is right that the nsa surveillance programs are illegal (than which nothing could be more obvious). and then stipulate that we live under the rule of law. (admittedly, i have argued that rule of law is conceptually impossible, on multiple grounds; let's take seriously the way politicians talk for a second.) well then, actual persons have committed actual crimes. general keith b. alexander has committed literally billions of criminal acts. if no one is above the law, then if these things are indeed illegal, then every person embedded in this bureaucracy ought to be prosecuted as an individual. correct? that's what their own rhetoric, which admittedly is a bunch of bullshit, demands. barack obama and george w. bush are guilty of directing a vast criminal conspiracy. indeed, this is as extreme a case as you'll run into of racketeering, as organized a crime syndicate as has ever existed.

here's how a pres gets out of this: "alberto gonzales wrote me a memo saying it was ok!" i suggest you try that in your next trial for murder, rape, theft, or whetever hobbies you may have of which the authorities disapprove. really, that's the defense? your own lackeys told you that organized crime was no prob? anyway, if we just held these people to their own proclaimed standards and their own simulated sacred commitments and deepest beliefs, anarchy would be here this afternoon. and i just want to remark to the conspirators as they gaze into the mirror that you can indeed immunize yourself from the legal consequences. you can't be imprisoned if you've already hung yourself in shame at your betrayal of your selves. this is where roman senators fell on their swords or samurai committed seppeku. where's your honor, man?

jumping ship

yes, we might all have to abandon the internet because of its colonization by the secret police, as these very reasonable people show. it'll be ok. we'll miss it, but you know, 25 years ago we puttered along without it.

more zim

so, compare zimmerman to rodney king, for example. the acquittal there was ridiculous, and everyone was in a position to reach a reasonable position on that; you could see the damn video. it was directly police against citizen, and you could establish a horrendous racist history in the lapd. now, that is a pretty darn clear and important symbol of central racial realities, even though in every case where you read actual events as sheer symbols, you'll be losing a lot of important particularities etc. but in this case, we don't realy know what happened (if you think you do, that's a bad sign; you'll just kind of make shit up; you don't need facts because you've got the little repertoire of stories all ready to go). zimmerman's race is highly ambiguous, etc. now, 'hoodie' is powerful, but it's sort of one of the few things that's clear: that trayvon was wearing a hoodie. 

i'm just betting that almost every day, somewhere in the usa, there is a clearer example of the way racism expresses itself in our lives now. no one exactly chooses to make a certain event a crazed media sensation or an emblematic thing, but i don't think this was the best such apointment.

trayvon, george, ed, and mohamed

that the zimmerman murder trial is a far bigger story in our news media than the nsa revelations or the situation in egypt is just absurd. i guess it's a racial emblem, but i don't think it works that way until you actually figure out what happened. and if you let your a priori interpretation of racial symbology dictate your view on zimmerman's actual guilt or innocence, you are engaged in an absurd procedure. 

give it up

the supreme court right now is surprisingly unpredictable, specifically in who votes how. that's a relief because for awhile it just seemed absurd when people would declare that political ideology wasn't (the most) important (factor). i vibe that it's roberts, kind of on a long-term program to re-establish the court as a neutral arbiter. scalia was always more interesting than people seemed to think, of course. sometimes there seems to be no telling, yet i'm betting if you sat down with him for awhile you'd find is a fierce consistency on his own account that is compelling. 

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.