Sunday, May 18, 2014

Cass Sunstein On Richard Epstein On Constitutional Theory

Linked to below is a most interesting and accessible account by Cass Sunstein of Richard Epstein's constitutional thinking, which itself, that thinking, became a kind of Bible for the Tea Party's version of the U.S. Constitution.

Epstein has what he calls a classical liberal reading of the Constitution. His argument is that as the bare text itself cannot yield determinative answers to hard cases, what is needed is to understand and isolate the theory that animates the text.

(In that formulation, Epstein rejects out of hand Scalian Originalism, which, he contends, has nowhere ever been functional in constitutional interpretation.)

Epstein argues that that theory is classical Liberalism that limits government, vaunts private property, protection of individual rights, freedom of contract, and most fundamentally personal autonomy. Hard cases fall to be decided on principles that are consistent with and enhance that animating theory.

Sunstein's basic criticism of Epstein is that his, ultimately, is an arbitrary moral imposition of his own present preferred views, which views are not supported by an exhaustive historical demonstration of their informing the constitutional text. Others take different views of what underlies it.

My own thought as to what Sunstein argues is to wonder whether he agrees with Epstein's fundamental proposition that as the bare text yields no determinative answer what is needed is the theory that animates the text and by which hard cases fall to be decided.

If he doesn't agree, what is his principled account of the resolution of hard cases? If he does, what theory or theories does he postulate?  http://www.newrepublic.com/article/117619/classical-liberal-constitution-richard-epstein-reviewed

For as much as I enjoyed Sunstein's lucid and highly accessible review of Epstein's thinking and his book, the meal would have been even more satisfying had Sunstein touched on his own thinking on these issues.

http://www.newrepublic.com/article/117619/classical-liberal-constitution-richard-epstein-reviewed

Wednesday, April 23, 2014

Middlemarch, Chapter 61, Book 6: Has Eliot Mucked Something Up?

Middlemarch, Chapter 61, Book 6

Has Eliot mucked something up?

.....The spiritual kind of rescue was a genuine need with him. There may be coarse hypocrites, who consciously affect beliefs and emotions for the sake of gulling the world, but Bulstrode was not one of them. He was simply a man whose desires had been stronger than his theoretic beliefs, and who had gradually explained the gratification of his desires into satisfactory agreement with those beliefs. If this be hypocrisy, it is a process which shows itself occasionally in us all, to whatever confession we belong, and whether we believe in the future perfection of our race or in the nearest date fixed for the end of the world; whether we regard the earth as a putrefying nidus for a saved remnant, including ourselves, or have a passionate belief in the solidarity of mankind.

The service he could do to the cause of religion had been through life the ground he alleged to himself for his choice of action: it had been the motive which he had poured out in his prayers. Who would use money and position better than he meant to use them....Also, profitable investments in trades where the power of the prince of this world showed its most active devices, became sanctified by a right application of the profits in the hands of God's servant.

This implicit reasoning is essentially no more peculiar to evangelical belief than the use of wide phrases for narrow motives is peculiar to Englishmen. There is no general doctrine which is not capable of eating out our morality if unchecked by the deep-seated habit of direct fellow-feeling with individual fellow-men.....

This odd, as in strange, narrative reflection goes on in Chapter 61, in which Bulstrode in the end tries to make all kinds of amends in offering to buy off Will.

Clearly, Bulstrode is a much more complex bad guy than Raffles, who's a straight up rogue with no tincture of doing good. But the argument here, save if Eliot's narrator, Eliot too, is being coy and subtly ironic, a possibility I lean against strongly, is that since Bulstrode isn't an out and out con man and fraudster, which he's not, he's less morally compromised in the result. His hypocrisy is of a piece with mankind's: "...the use of wide phrases for narrow motives...," that wherever we squander our good intentions by turning away from "fellow feeling" and seek our own narrow ends that we cover over with "wide phrases," we are in league with Bulstrode and he with us, and so he is less villainous and objectionable than a Raffles who is deviantly criminal.

I beg to differ.

I'd say, contrary to what Eliot *seems* to argue for, Bulstrode is more morally objectionable than Raffles, save for Raffles's sadistic streak, loving to torment others for his own pleasure, getting off on "effects." Raffles has no pretence about himself and he feeds off others' wrongdoing in his blackmail. This isn't of course to make a case for him, just to compare immoralities. Bulstrode has, not to put too fine a point on it, swindled others, caused the innocent loss at his gain.

While we can feel Bulstrode's pain, we pity him, it's hard not to, rather than sympathize with him. The substance he has made of his life, his actually doing some good, cannot expiate his blatant wrong doing. And his gradual fall into evil ways, rather than straight up, immediate criminal self seeking, does nothing to ameliorate his wrongs. It rather just instances another more of wrong doing slathered over by hypocrisy, such that some straight up clarity about what he was and did would be like a breath of fresh air. Consistent with that hypocrisy, my call is that what animates his urge to "protect" himself with penitential acts is the threat of being exposed and the scorn and opprobrium that will be heaped on him should Raffles go public.

We never so much grieve over our wrong doings and become penitent, seeking ways to ameliorate their consequences, as when we are in the midst of getting caught.

It takes Raffles's threat to expose Bulstrode to move him for the first time to try to make concrete amends for the loss his fraud on his first wife has caused to her rightful heirs, Will and his mother at his, Bulstrode's, own huge enrichment.

This, the imminence of the crashing down of reality on him, rather than substantive, uncalculating, truly motivated, genuine remorse, is what ultimately causes Bulstrode his agonizing, internally sick-making woe. That is made clear when Will refuses to be bought off with tainted money from the sleazy pawn brokering business, which thrived on dealing in stolen goods,which forces Bulstrode to comfort squarely the worst of himself without "wide phrased" defences, and when Bulstrode's own weeping for himself, his reality likely to be exploded, is somewhat staunched by his realization that Will "...was not likely to publish what had taken place that evening."

So Eliot in the narration I quoted seems untypically out of step with herself here, her grand theorizing here getting the better of her, given the novel she has written, specifically Bulstrode's own criminal wrong doing, and his subsequent insidious, continuous hypocrisy. And, I surmise, she has gotten lost, untypically, in the very complexity she accords to Bulstrode.

No?

And by the way, Bulstrode in keeping the information about Will and his mother to himself and bribing Raffles to keep quiet when he'd undertaken to execute the search is criminal and is civilly actionable, just as his pawn brokering receipt of stolen goods was criminal. Eliot has Bulstrode denying he has no legal obligation to Will, just the compunctions of conscience. He's dead wrong. I think Eliot is as well as I read the narrator to suggest as much.

Saturday, April 19, 2014

Middlemarch: A Note On Chapter 54, Book 6

Finally, and at last, sexual desire in Middlemarch.

If this isn't sexual desire, couched to be sure, layered into other needs and motives too to be sure, then I'm a monkey's uncle and I'll tell you where to send the bananas:

...Ch 54: ...The silent colloquy was perhaps only the more earnest because underneath and through it all there was always the deep longing which had really determined her to come to Lowick. The longing was to see Will Ladislaw. She did not know if any good would come of their meeting: she was helpless; her hands had been tied from making up to him for any unfairness in his lot. But her soul thirsted to see him....

But to dwell on the presence of sexual desire in Ch 54, even as it seems out in the more or less open--it is after all a Victorian novel-- for the first time in the novel, is to do Chapter 54 cheap.

I had wondered whether after Casaubon's death there would/could be anything as psychologically penetrating as Eliot's dissection of Casaubon and Dorothea and the terrible negative dynamics of their relationship.

No need to wonder.

In the meeting between her and Will Laidislaw, the complexity of the psychological and social forces working against their being straight with each other and professing their love for each other, or at least offering some understandable sign of it, is rendered with such complexity and power that my head is still spinning.

Would that I had the will and the energy to try to analyze more formally some of what's that's going on there. The dynamics and layers of meaning are inexhaustible.

Which, on a different point, screams out against the move to theory in academic English, crowding out close reading and appreciation of the text, theory seemingly being concerned with everything but what is in the text on the text's terms, which is to say, on literature's terms.

Middlemarch: A Note On Coming To The End Of Chapter 52, Book 5

Middlemarch

I just finished Ch 52, and am roaring like a tortoise toward the end of Book 5. The heights of the novel remain for me, so far, matters Casaubonian and his Mrs., though of necessity that particular focus has changed. He's dead.

I wonder if there will be a falling off of psychological intensity with that shift in focus.

I'm still struck by all the explicit asexuality, and wonder about sexuality's implicit place in the novel. I look forward to reading Rebecca Mead's book about reading and rereading Mm as she grows older and as her relation to the world accordingly changes. Apparently, I've only read the Kindle sample portion of it, she argues for plenty of implicit sex in the novel. I don't want to read any more of her book, natch, till I finish Mm myself. I'm sensing peripheral intimations of sexuality, like Dodo's horse back riding, which she finds so *invigorating,* but they're way more incidental than purposeful, it seems.

I'm keeping in mind a professor friend's comment about Mm extolling the Christian virtues like self sacrifice for good, forgiveness and such as its strong theme. I'm not seeing that and am seeing, rather, the need for a balance between doing good, rather than do gooding, and a healthy portion of self interest.

So even when Farebrother self-effacingly pleads Fred Vincy's case to Mary Garth, a wonderful, penetratingly intelligent and moving scene rooted in laudable self sacrifice, there's a measure of self interest in their exchange, I'd argue, which saves it from irritating piety and conforms more to Eliot's thematic ideal of balance as opposed to inhuman, life denying self sacrifice.

At least so far in my reading it does.

Wednesday, April 16, 2014

Middlemarch: A Brief Note on Chapter 42


Just finished Book 4 and am galloping like a tortoise into Book 5.

I keep being struck by how whenever the narrative spotlight shines on Dorothea and Casaubon, Chapter 42, for instance, Eliot authorially combusts, especially in her poetical and psychological penetration into Casuabon and his immiserated relationship with his wife. For examples of both from Ch 42:

....And Mr. Casaubon's immediate desire was not for divine communion and light divested of earthly conditions; his passionate longings (me, he has just gotten Lydgate's prognosis on the possible anytime suddenness of his death), poor man, clung low and mist-like in very shady places...

....But she hesitated, fearing to offend him by obtruding herself; for her ardour continually repulsed, served with her intense memory, to heighten her dread, as thwarted energy subsides into a shudder; and she wandered slowly round the nearer clump of trees until she saw him advancing. Then she went toward him, and might have represented a heaven-sent angel coming with a promise that the short remaining hours should yet be filled with that faithful love which clings the closest to a comprehended grief. His glance in reply to her was so chill that she felt her timidity increased; yet she turned and passed her arm through his.

Mr. Casaubon kept his hands behind him and allowed her pliant arm to cling with difficulty against his rigid arm.

There was something horrible to Dorothea in the sensation which this unresponsive hardness inflicted on her...

In his rejection of her, and she has as ardently giving and compassionately sympathetic nature that is starved for just a morsel of reciprocity in feeling as exists in literature, Dorothea is moved to her greatest resentful anger at Casaubon, his Lilliputian vindictiveness slaughtering her ardent compassion, and finally waits for him to go to bed, after they have both been alone, she in her boudoir too upset to take dinner, him in his library continuing his burrowing work, so she can tell him how angry and ill treated she feels.

And yet, and yet:

...'Dorothea!' he said, with a gentle surprise in his tone. ' We're you waiting for me?'

'Yes, I did not like to disturb you.'

'Come, my dear, come. You are young, and need not extend your life by watching.'

When the quiet melancholy of that speech fell on Dorothea's ears, she felt something like the thankfulness that might well up in us if narrowly escaped hurting a lamed creature. She put her hand into her husband's, and they went along the broad corridor together...

And there it is: what must be one of the most moving, sad making in fact and subtly complex scenes in what is is one of the greatest works of world literature.

Words cannot tell how deeply this concluding scene of Book 4 resonates with me.

Sunday, April 13, 2014

A Note On Ozick On Stach On Kafka

A conceptually troubled but basically illuminating review by Cynthia Ozick on V 1 of a massive biography of Kafka, and then my comment on it:

http://www.newrepublic.com/article/117172/kafka-decisive-years-and-kafka-years-insight-reviewed


.....I find that Ozick's initial hyperventilated prose is of a piece with her hyperventilated and confused initially stated thesis: that after all the oceans of ink spilled over Kafka, biography and her review of biography--"secondary exhalation"--are justified by the need to rescue Kafka from twin vulgarities of "Kafkaesque" and "transcendent: the first a gross distortion of his work at one with the degeneration of the imagination of anyone saying it; the second a thin and abstract attenuation of the concrete reality and hard particulars of Kafka's life, times, and his specific being.

Her complaint about "Kafkaesque" is too precious by half. The word has simply entered the culture as a free standing descriptor suggesting something like "having a nightmarishly complex, bizarre, or illogical quality and the denatured, impossible tangle of bureaucratic mazes." (There's a whole funny riff on Jesse's using it without understanding it in Breaking Bad.) That descriptor clearly has roots in Kalfka's fictional worlds and isn't a bad *very general* approximation of them. But, really, what person reading, Kafka and thinking and writing seriously about him will resort to, or be imprisoned by, "Kafkaesque?" Why, nobody, I'd argue, which measures the precious silliness of Ozick's complaint on this score. Simply put, she makes no case for the descriptor's "...reductiveness posing as revelation."

In Ozick's second complaint, "transcendence," equally exaggerated, Ozick confuses art and life. She wants to disabuse us, for example, and as an example she uses, of Updike's interpretive argument from transcendence. She quotes him:

....Kafka, however unmistakable the ethnic source of his ‘liveliness’ and alienation, avoided Jewish parochialism, and his allegories of pained awareness take upon themselves the entire European—that is to say, predominantly Christian—malaise....

And herein precisely lies her massive category error: Updike is talking about Kafka's fiction, "his *allegories* of pained awareness." (My asterisks) Ozick is talking about Kafka's life. Just as the descriptor "Kafkasesque" is of no use or interest to anyone seriously reading, thinking about, writing about Kafka, so to that same person, there is, I'm confident, no confusion about the allegoric and nightmarish fantastical nature of Kafka's fictional worlds, surreal, disembodied, and the specifics of his own, life times and being. Reinforcing her error is her own thankfulness and acknowledgement that Stach isn't a literary critic. He's faithful to wanting to mine accurately and deeply from the depths of Kafka's lived life and his times.

For Ozick to be consistent with her thesis, and in opposition to her complaint about, for example, Updike here, she would have needed to make case how all those specifics figure concretely and thematically in his work. Mission impossible, I'd think. And she doesn't touch that.

But here's a huge saving grace, IMO: once she gets into offering her reviewer's synopsizing reprise of Stach's first volume and leaves her ponderous, overheated and wrongheaded theorizing behind, her prose settles down becomes plainer and richer in its eloquent and accessible concreteness. That part of her review, the travel through Kafka's life, is illuminatingly excellent. 

Last note: the thread comments complaining that Ozick's writing need in some measure approximate the quality and entertainment of Kafka's own writing are absurd. And, as noted, once Ozick settles into the meat of her review, her prose needs no defending. 

Monday, April 7, 2014

A Note On Chapter 29, Book 3 Of Middlemarch

Chapter 29 of Middlemarch is another really high point in the psychological dissection of Casaubon as a shrivelled up, insecure, highly self conscious egoist, his self consciousness of his abiding failures feeding his shrinking-of-self insecurity and in the dissection of his marriage to Dorothea and in the contrasting presentation of her increasingly expansive sympathetic nature.

In that it's a complement to the magnificent Chapter 20.

It seems to me Eliot comes most novelistically alive so far in depicting Casaubon in his marriage to Dorothea.

The narrator's phrasing about him soars in its aphoristic brilliance, such as for example;

...his soul was sensitive without being enthusiastic: it was too languid to thrill out of self consciousness into passionate delight; it went on fluttering in the swampy ground where it was hatched, thinking of its wings and never flying...

This is narrative telling, not showing, though there's showing aplenty too, and the telling, not showing, works brilliantly well, making a cliche out of the admonition to writers "Show don't tell."