Friday, April 28, 2017

Existentialism And Relgion: The Idea Of A Religious Existentialism

4/28/17

Something I wrote to a friend today on a small thread here prompted by an Introduction by Philip Maitre to famous essay by Sartre, the title of which I've seen translated as either Existentialism & Humanism or Existentialism Is A Humanism:

.... Religion and existentialism as I understand the latter may or may not go together. 

For Kierkegaard they go together in his famous "leap of faith" after beholding a terrifying nothingness-- "fear and trembling." Thus, faith becomes his "purposes and projects," using Maitre's phrase from his Introduction. Why faith may be seen as existential is because insofar as existentialism is a philosophy of subjectivism, the leap of faith is from the terrifying apprehension of nothingness to the fullest realization of subjective fulfillment in something absolutely larger than oneself, (enough for Kierkegaard for Abraham to have slain Isaac.) 

But would Sartre consider a leap of faith bad faith and what would distinguish bad faith from good faith, the latter comprised by purposes and projects that confer meaning and value on self, others, their relation and the world of objects? 

For Sartre, as I understand him, purposes and projects must have a concreteness in the world and must involve in some way engagement with the world, which means necessarily with others. I can't make the intellectual move from that idea to a leap of faith into faith, which, however intensely and authentically felt and held, constitutes a reification, which is an engagement with "nothing" and by definition not the world, unless perhaps, maybe, (probably not) that faith translates into "good works."  

As I say, my knowledge and understanding of Buber are skimpy to say the least, though I'm of familiar with his "I and thou," but only as a kind of catch phrase. I've always taken it to mean turning the "other" into a human being whom one, so to say, takes into one's soul and can therefore feel for them love, empathy, compassion and kinship. 

Is that construction of "I and thou" right, and if it is what makes Buber's religiosity existential? And, finally, what resolves the gap or tension I see between Kierkegaard  and Sartre? Or am I asking misconceived questions?...

Thursday, April 27, 2017

The Black Eyed Blonde by Benjamin Black

4/27/17

Crime based noir + literature = The Black Eyed Blonde...

...by John Banville writing as Benjamin Black, the same John Banville who won the Man Booker in 2005 for his novel The Sea, which I most definitely will soon read.

I can think of a few writers of this genre whose works are literary.

Take Raymond Chandler for instance.

The thing is that Banville/Black purposefully channels Chandler, his protagonist being Philip Marlowe, agonizingly self conscious, so sad and so self disappointed but, too, self accepting and comfortable in his own skin, wonderfully articulate in the vernacular, totally down to earth, wry, vulnerable, sometimes a tough guy, sometimes overwhelmed, well read, a perceptive judge of others, often cracking wise though not hard boiled, but, above all, honorable, living unflinchingly according to his own code of honor, ethics and morality. 

If every work of literature, (poetry too, in a way), is, as I argue it is, a search for self, a questing in the way of that by accumulating self knowledge borne of experience, then the Black Eyed Blonde exemplifies it as Marlowe comes to certain terms with himself over the progression of what happens. 

And the writing, born of first person narrative, is, I think, flawless, perfect, with Marlowe having a distinctive come-alive voice and fully realized, compelling and believable sensibility. 

Examples of this writing: 

p 89 ‘I’m just your ordinary Joe, trying to earn a buck and stay honest. There are thousands like me, Mrs. Langrishe — millions. We do our dull jobs, we go home tired in the evenings, and we don’t smell of roses.’

p 106 ‘A tabby cat that had been sleeping by the door opened one eye and looked at me, then got up slowly and padded away, its tail lazily twitching. What is it cats know about us that makes them disdain us so?’

p 132 ‘You don’t realise how narrow the space you’re living in is until someone else steps into it.’

And in places the writing is beautifully evocative too: 

p 134 ‘”To you a solitary life is unimaginable. You’re like one of those big fancy cruise ships, clambered all over by sailors, stewards, engineers, fellows in crisp uniforms with braid on their caps. You have to have all this maintenance, not to mention beautiful people dressed in white playing games on the deck. But see that little skiff heading off towards the horizon, the one with the black sail? That’s me. And I’m happy out there.”’

p 165 ‘Outside, the street was deserted, and a warm mist was wafting down from the hills. Across the way, the eucalyptus trees stood motionless in the light from the streetlamp. They were like a band of accusers staring at me silently as I got into the Olds. Hadn’t they told me so? Hadn’t they said I was a fool..?

…Ghostly waves were breaking in the moonlight, and farther out the night was an empty blackness, with no horizon…’

I don't know if Banville/Black out-Chandlers Chandler. I guess I'll have to reread some Raymond Chandler to find out 

I can't recommend this novel strongly enough for sheer reading pleasure.

Tuesday, April 25, 2017

Existentialist Bafflegab And Camus's The Stranger

4/25/17

On existentialist bafflegab and Camus's The Stranger

Philip Mairet in his introductory essay to Sartre's essay Existentialism & Humanism says that existentialism is a philosophy of subjectivism, that the root of all human anxiety is our need for authenticity, which itself is rooted in our need to know we exist. The dilemma of existence arises, he says phenomenology says, from our being caught between the unknowinginess of objects and our self unknowingness as perceiving subjects. In that in between lies epistemological chaos paradoxically  coupled with our innate need, springing from our need to know we exist, to be responsible for our actions, that they be meaningful so that by that we achieve authenticity. We escape, strive to escape, the anguish created by these needs by starting with an understanding that so things are and not otherwise, are not what they are not. And we can transcend anguish, after that realization, by creating projects and purposes that then confer meaning on us as subjectivities and upon "the world of objects--all meaningless otherwise and in themselves." (P. 14) By so doing, we get the authentic knowledge we exist, our "transcendent need and desire." (P 14)  Not many can do this. Most of us find reassurance by thinking about death as little as possible and by losing ourselves in the worship of "idols such as humanity, science, or some objective divinity." (P 15)

I think to myself that all this can't withstand even not very probing scrutiny. 

The reduction of all human anxiety to an existentialist formula and catchphrase isn't argued for, isn't demonstrated, is just asserted without cause to agree with it. That we all in varying degrees crave affirmation and recognition is a truism rather than a truth and as such spawns simplistic self helpism rooted in self esteem as an all consuming premise. But that truism doesn't exhaust the sources of human motivation nor the causes of anxiety. Which is why to claim that it does is reductive and constitutes self help rooted in self esteem in principle undifferentiated from this existentialist notion, which is, to my mind, exactly self help rooted in self esteem gussied up in more dramatic and highfalutin language.

Same with the apparent "dilemma of our existence." Certainly, we can't fully know ourselves and we can't in principle know everything about the world of objects, which in fact we populate while we perceive them. But is the result of that really chaos giving rise to our anxiety and dread, which we can either run away from in bad faith or in good faith embrace and transcend by our purposes and projects? Again there is truism here more than truth, triteness masking as profundity. The world can be mystifying. There is so much we don't know. Most of us want purposeful lives and anxiety can certainly come from feelings of purposelessness, triviality and failure. But do we need pages and pages of arcane vocabulary to understand this? What sentient adult doesn't understand it, feel it. And thus we in the main try to give meaning to our lives in what we do, chased by a felt need to do. But in that, and in what we don't know, are we really in a universal condition of chaos marked by anguish? Surely this is vastly overstated. Surely, we, most of us, have sufficient provisional working senses of ourselves and the world such that we can get along albeit imperfectly but not mired in sickening dread.  

Next to last, by what criteria are the existential projects and purposes to be measured? Mairet's Introduction gives no clue. If my purpose and project is to collect varieties of lint, then on what basis is that less transcendent than fighting to save lives? If the issue is subjectivity and the way out of enveloping nothingness, then on what ground does one's affirmation through a project stand over another's, especially if we lose ourselves in "idols" such as humanity or science? On what Mairet says, the lint collector haunted by the spectre of death and rising over it with the fabulousness of his lints will be more authentic, will live more fully, more meaningfully, than the curer of a terminal disease who doesn't think a lot of his own mortality. It is, I think, a telling mark against the corner in which the nihilist underpinnings of Mairet's argument force him that much less fancy folks than existentialists, of which less fancy folks I count myself as one, have no trouble seeing the greater human significance of the disease curer over the lint collector and which of them, likely, has the more fulfilled, meaningful life.

Finally, it is that very underpinning nihilism that makes an absurdity of Mairet's argument. Maybe we can't derive an ought from an is, some smart people think we can, but we can't for sure derive something from nothing. That is why Mairet can offer no criteria for distinguishing some purposes and projects from others, why they all stand equal under existentialist law. For if there were distinguishing criteria marking the better and the worse, the more important from the less important, the moral from the immoral, the purposeful from the purposeless, other than how they make us feel, then the very bottom of the argument--the meaningless  of the world and ourselves in it-- falls out. The distinguishing criteria would spell out meaning that the bottom of the argument asserts doesn't exist.


And that, btw, is the unresolvable contradiction between Mersault's pridefulness and vindictiveness at the end The Stranger and the book's theme of absurdity, that nothing matters.

Friday, April 21, 2017

Spirit And Letter Of The Law

4/22/17

Question: is there such a thing as the spirit of the law and if so what can it functionally mean? 

There may be such a thing, i.e., it may be something we can speak coherently about.

I'd say, if I had to try to define it, it's what the law aims at, its purpose or its intent, as derived from what the law says.

So in this sense, I can see talking about the letter and the spirit of the law: to take a dull example, there are complicated laws governing what equipment vehicles need to meet emission standards, the letter, the larger purpose of which is to curb air pollution, the spirit. 

I don't see anything controversial in any of this. 

But the bite can come, for examples: when the letter of the law seems inconsistent with the spirit of the law--say it can be shown that certain emission prescriptions don't curb emissions; or when someone violates the letter of the law but meets its spirit, say unprescribed emissions controls that work but still leave the driver non compliant with what's prescribed but can be shown ineffective. 

The examples are endless. 

With these examples, textualists, of which I'm one, will say, "Spirit me no spirit. If the plain language of the law points to a clearly understood meaning, then that ends the question of what the law is/means." 

Mind you, if the language in question is ambiguous, capable of being read reasonably more than one way, recourse to overall language, structure, context and purpose are indispensable means of resolving the ambiguity. Judges, citizens, will want to favor the reasonably possible meaning that fits with the language structure, context and purpose of the overall law. 

But the difference between my two examples and reasonably read ambiguity is that in the first cases there is a tension or gap between meaning and purpose with a proposal that the latter trump the former, while in the case of ambiguity, the effort is to try as much as possible to harmonize meaning and purpose, to try to make them seamless. 

So my argument is that when literal meaning, the letter, seems at odds with overarching purpose, spirit, the former must prevail and in the sense of ostensible friction or a contest between the two, there is no prevailing meaning that can be given to the idea of the spirit of the law.

There is a doctrine of absurdity, which is to say, the law is not be read so as to lead to absurd results. While I'm not well schooled in this doctrine, my general, unnuanced understanding is that it's confined to evident drafting errors, "the scrivener's error," which is to say, manifestly the legislature cannot have intended provisions that are distinctly opposite, in fact countermanding of, what the law as a whole clearly intends. This is a very narrow doctrine. 

If anyone wants to amplify, refine, raise questions about, or disagree with any of this, I'd be happy to consider any such.

Sunday, April 16, 2017

A Few Sour Notes On Howard Jacobson's The Finkler Question

4/17/17

Oy vey!

I finally finished reading Howard Jacobson's The Finkler Question, which is one of those books I read very slowly over a very long period of time, at most 15 pages at a time, save for tonight when I read about 40 of its last pages just to finish. I didn't read it slowly in order to savor it or to pause meditatively over its parts. That's just the way I happened to read it for whatever the reason. 

Basically I didn't like it and one reason is that I can't remember the last time I was so irritated by, impatient with, frustrated by, felt exasperated dislike for, a main character. Here, the utterly hapless protagonist, if he can be called that, there's so little that goes on, Julian Treslove, obsesses over wanting to be a Jew. (Don't ask: it's in this book a ludicrous premise.) 

He's the personification of an obsessiveness that stops short of mental illness. He obsesses over who he is, over every little thing that happens to him--nothing big does--over his friendships, his relationships with women. He embodies the paradox of the kind of person who's so deeply and endlessly preoccupied with own puniness, failures, weaknesses and limitations that he's finally and essentially irritatingly self centered. He's self abnegation as self assertion. 

That one reason blends into another one: I'd argue Jacobson invests himself in Treslove's unending interiority. Rumination, at least in one of its meanings, isn't a good thing. It's obsessive thinking. As a mode of anxiety it's compulsively going over and over the sources of distress. And as Treslove does little but ruminate, so Jacobson fancies that rumination an apt means of his, Jacobson's, questioning, answering, observing, discussing, exploring, disputing, presenting, joking about, explaining, talking about, satirizing, hectoring, all endlessly to an obnoxious fault, Jewishness in all its ostensible forms, manners and habits. 

What Jacobson through Treslove has to say about the nature of Jewishness is typically so petty, so absurdly binary, so trivial, so essentialist, so over the top, so trite, so exaggerated, all in all so foolish, that it made me think as I was reading that "This guy, Jacobson, isn't really very smart after all, that no one but some fool who lives largely in his own pointy head could seriously think and write these things." 

I'd argue that for Jacobson, Treslove isn't a detached fictional creation of a certain type of man. I'd argue, rather, that while clearly Treslove isn't an autobiographical character, Jacobson projects much of his own sensibility into him. 

Now The Finkler Question, which by the book's terms means The Jewish Question, got a lot of good reviews and it won the 2010 Man Booker Prize. All that reviewing and prize winning glory made me wonder if my breaking up with the book was me and not it. 

I surmounted my wonder, however, and concluded it wasn't me, it was it. And so I was gratified to see that a high toned critic like James Wood felt somewhat the same way. So if anyone wants to get a more concrete and detailed sense of some of the causes of my disdain for this novel while reading a spritely and acute piece of book reviewing at the same time, I commend Wood's article on Jacobson's work. 


http://www.newyorker.com/magazine/2010/11/08/member-of-the-tribe

Religious Liberty: Sexual Orientation Compared To Racial Discrimination

4/16/17

Racial discrimination and sexual orientation discrimination in relation to religious liberty: 

This note is prompted by an essay I just read that argued for, among other things, religious liberty to include the conscience based right to discriminate on the basis of sexual orientation, for example not to provide a public service for a gay marriage. 

Please forgive my lack of nuance and any errors. I'm not a U.S. lawyer and this is essentially, but not totally, off the cuff. I did quickly look up a thing or two. 

As I understand it, basically and generally religious liberty ends where other law begins. So that, for one example, the unburdened exercise of religion provided in America by the federal and various state RFRAs--Religious Freedom Restoration Acts--reaches one of its limits when it causes discrimination on the basis of a "protected class." A protected class is a term of art: 

....In United States federal anti-discrimination law, a protected class is a group of people with a common characteristic who are legally protected from discrimination on the basis of that characteristic...

Such characteristics include race, color, religion, national origin. States may in their own legislation on protected classes add characteristics, such as gender identity, not covered federally. 

(I'm unsure of whether sexual orientation is a federally protected class. My at hand and working sense here is that it is for some purposes (say) in employment but not for other purposes. I'd be obliged to be enlightened on that point.)

In a nutshell, no one state licensed can in providing public services exercise their religious liberty if doing so discriminates against a protected class, for example refusing to bake a cake for an interracial marriage. 

In my view, and again very broadly speaking, at least two of the pre-legal informing components in the creation of protected classes are rationality and cultural resonance, which is to say: 

the utter absence of any rational basis to discriminate on the basis of a particular and evident characteristic, (say) skin color,

married to the felt understanding of that absence throughout society. 

Sometimes courts on the basis of rationality will judicially pioneer lahead of sufficiently felt understanding. Sometimes felt understanding will precede lagging judicial recognition. 

So to get to a case: some states don't recognize sexual orientation as a protected class; some do. Therefore, in the iconic example, in some states a Christian baker might rightfully refuse to bake or decorate--some case law distinguishes between baking and decorating--a cake for a gay wedding in the exercise of a sincerely held religious belief; in other states that same baker would be acting unlawfully and be subject to penalty. 

To be sure, in neither state could that baker refuse with impunity either to bake or decorate a cake for an interracial marriage, race being a universal defining characteristic of a protected class, with sexual orientation being a defining characteristic of a protected class in some jurisdictions but not in others. 

So the issue boils down to this, in *one* way of framing it: is there any rational basis for this kind of sexual orientation discrimination whereas there is none for racial discrimination? Why, in other words, shouldn't sexual orientation be an across the board basis of a protected class just as skin color is. 

Me, I can't think of any reason. 

So, I'd say that (say) bakers' unburdened exercise of their religious liberty should stop short where the law making sexual orientation a protected class ought begin. And, further, just as talk of "accommodating" racially prejudiced attitudes, religiously  based or not, sounds to any fair minded person unacceptably wrong, so should any talk of "accommodating" homophobic attitudes, whether religiously based or not. The essential parallel between the cases rests, yet again speaking broadly, on skin color being as incidental to the imperative of equal treatment as is sexual orientation. 

When it comes to sexual orientation it's time for cultural resonance and rationality to marry each other and to consummate their marriage. 

A further word, just to put an emphatic point on all this: just as a religious leader is acting illegally in refusing to officiate at interracial wedding, so it should be illegal to refuse to officiate at a gay wedding.

Friday, April 14, 2017

War Dogs

4/14/17

I just watched War Dogs and give it 6.9 out of 10, which is to say, not quite 7.

I saw it on TV and there were a few excerpts from reviews accompanying the listing of it on a movie channel I get. They panned it for its jazzed up effects and for not taking a stronger moral stand against this particular dark alley of "enterprise war." The guy who directed it, Todd Phillips, directed the Hangover movies, which I saw and didn't much like. So I had low expectations.

But I was pleasantly surprised. I was never bored and while I didn't think it was at all funny or profound, I found the story well told and fast paced. I've known guys like the Jonah Hill character all my life, some having been friends of mine at times, others having been clients. Jonah Hill is fantastic in his portrayal of that kind of guy, con man par excellence, with very little discernible core self, in many respects virtually sociopathic, ultimately undone by his own weaknesses and lack of self control. I kept forgetting it was Jonah Hill and became immersed in his character.

Miles Teller is less effective and is impaled on a contradiction in his character as both a nice, simple guy, a naïf and a nebbish, but also a quick study, able, for example, to construct out of nothing three years of back dated phony accounting records right down to fake purchase orders sufficient to pass two U.S. army procurement audits. One of those two sides of him, as the movie has it, has to go because they don't fit together. Also the scenes with him and his girl friend are boring. Teller himself and those scenes drain away some of the energy that Hill blasts through the movie. 

What helps stiffen the movie's spine is that it's based on a true story. While I can't tell how much War Dogs distorts, departs from and embellishes the true story, it's quite amazing how two twenty something Jewish kids from Miami who never finished college pull off as much as they do. 

Mind you, against all that pulling off, it's compelling to see how Hill--for as sharp as he is in nailing down the ins and outs of arms dealing and the various angles he works it from, in conning others and in teaching Teller all that--is so vindictive-dumb and greedy-dumb in how finally he fucks every thing up. 

That he brings everything crashing down out the weaknesses in himself, out of what he can't control in himself, is War Dogs's version of a kind of anti tragic flaw, the flaw that brings a low person down even lower to ruin from flimsy corrupt heights. And that flaw builds up nicely, getting more and more exposed, as the movie goes along till it finally explodes in all the principals' undoing. 

In The Wolf Of Wall Street and in Goodfellas, which itself is compellingly watchable, I have a problem with Scorsese's amorality in jazzing up what is awful human behavior ranging from scamming gullible people to outright gangster thuggery and murder. There's a moral and intellectual gap between how morally deplorable all that behavior is and how it's either glamorized, made entertaining or made light of as for example in the litany of corpses at the hand of Robert De Niro showing up near the end of Goodfellas in funny looking poses of death. 

But, having noted all that, it doesn't bother me at all, as it does many reviewers, that Phillips doesn't take a harsh view of what Hill and Teller do either in itself or as part of the dark, dark history of the Iraqi war. That they defraud the Pentagon, and ultimately U.S. tax payers, doesn't bother me, even as it's criminal. Maybe it should. But, for me, Phillips basically tells an amazing story quite effectively and I found myself hoping for these rip off guys to get away with it. 


In this story, the charm of rogues defying the powers that be, the essential appeal of rogues, wins me over till things finally fall apart.

Tuesday, April 11, 2017

Dennis Lehane's The Given Day

4/11/17

(No spoilers. I promise.)

Who said I can't read a 704 page book? 

I just finished it--Dennis Lehane's The Given Day, a novel of social history, predominately set in 1918-1919 post WWI Boston, rife with Irish life, labor and racial strife, and radical agitation. 

So what gets dealt with here: only, an overworked, exploited, underpaid police force; workers agitating for better living wages and humane working conditions; burgeoning unionism; baseball as it revolves around Babe Ruth, then playing for Boston and still pitching; radical movements of communists and anarchists; their countervail in the FBI; Boston's high municipal officials and their graft and corruption; a black protagonist on the run from a murder in Tulsa who winds up in Boston, his path crossing with the young Irish protagonist; gangsters and prohibition; the nascent union movement; black class differences emerging with an emerging black bourgeoisie; a police strike and how it is met with historical figures like Andrew J. Peters and Calvin Coolidge among others; seething racism intersecting with the paranoid reactions to radical agitation; terrorism; the Boston riots during the police strike; a disintegrating Irish Boston nuclear family set among class distinctions as well, resonant in the idea of the "lace curtain" Irish; a plague of Spanish Influenza killing and maiming as it goes; and much much more.

The novel is epic and panoramic, the prose of the omniscient narrator solid and steady, capturing the inner voice of the various characters as the narrative spotlight shifts from scene to scene on them, from varieties of Irish brogue to stilted pol speak to the high formed talk of the black and Irish bourgeoise to the raffish street talk of the lower classes. I'm reminded of Doctorow and Dreiser and as well of Walter Mosley in the unrelenting pace of the narrative moving unstoppably forward in its headlong muscular way built out of real figures and built on real events.

Lehane can get right inside mob fury and wild violence as human nature gets shown at its squalid, corrupt and violent worst, especially when the lid of social control via the police is lifted off society.

When the raging heat of humanity bursts its bounds, we are left in suspense  at what will happen, who will survive, who will die, who will be permanently maimed. In ways large and small, Lehane paints a portrait of bottomless evil talking its toll as it explodes out of the foreboding woven in increasingly brighter threads as the novel goes forward. And the evil resides in the street thugs, the fanatical terrorists, in those in low authority who abuse their small portion of power in murderous ways, in venal union executives who make and break promises that working men rely on, and in high officials who let suffering and riot go unheeded for the sake of their willful pride and for the sake of vindictiveness. Lehane's evident sympathy is with the put upon working men who are abused and exploited every which way.

The novel covers a vast range. The copious research that has gone into is evident. It makes history come alive and ties it lightly to our own moment in the novel's concerns with race, terrorism, the otherness of immigrants, political venality, pervasive corruption, family breakdown, and massive class inequality.  

The title The Given Day points to a big theme in the novel: the paradox of what is gifted or given to us by chance as a beneficence and how what seems our doom befalls us as if fated as contingency is a gathering storm that finally catches us in it when it does, on, so to say, the given day. 

I think that this book would be an excellent American novel to teach and learn in university--it may be too raw in its language for high school--from any number of perspectives and at any level of course. 

Finally I'm put in mind of the "debate," maybe controversy is more apt, between Tom Wolfe and his opposed threesome of Mailer, Updike and John Irving, ("the three stooges").  Part of the fulcrum of that debate was Wolfe's embrace and championing of a kind of broad brushed, muscular Balzacian social realism in the novel. He argued that  the "old bones" had marginalized themselves through their evasion of the fullness of social reality and the smallness of their vision, writing about one neurotic after another in the cases of Updike and Irving. I'm not taking sides in that debate but Lehane's novel could be an excellent Exhibit A for the kind of fiction for which Wolfe argued.

Friday, March 31, 2017

A Note On Jill Lepore's New Yorker Essay, Weaponizing The Past

3/31/17

A long note On Jill Lepore's essay in the New Yorker on Weaponizing The Past:

Friend A, not a lawyer:

...There is an essay in this week's New Yorker (March 27) on the use of historical accounts of beliefs of earlier times, from the Greeks on, in making legal judgments.   Judges on both sides of the liberal-conservative divide appeal to historical precedents (in the non-legal sense of the term).  I had not heard of this.  

Friend B, not a lawyer...

....It's this: "Weaponizing the Past", and it seems to be largely a hit at Gorsuch via Scalia and so-called "originalism". As she's done before, I think the author, in her focus on "the past", here misses the point, which is the idea of applying a law that it's not the business of judges to make. Problems arise, granted, when a made law must be judged in terms of a higher law, which is either written, as in a Constitution, or unwritten, as in Common Law, and this is where history comes in. But the history only becomes "weaponized" when it's wielded not to determine the meaning of the higher law but to force it to fit some prior agenda or purpose -- i.e., to change the law...

Then along came Jones, me:

....I didn't know that LePore, with whom I have only an occasional familiarity, having read her occasional journalism occasionally, had "done this before", but I can believe it. I read this essay at least in part as tendentious, to put the subtle boots to Gorsuch. 

I'm not so familiar with the history test, with which she seems happy enough, if I read her rightly, when it yields results she likes; and she poo poohs its use for conservative ideological ends. I don't get from her, unless I missed it being a child of the 21st century with a declining attention span, a definitive thumbs up or thumbs down on the test. I note though she speaks laudably of Stone's book, and I infer from that thumbs up for more history, going way way back the better, if, again, she likes the yielded conclusions. 

I am familiar with some SCOTUS reasoning that talks about long held innate traditions of basic rights deeply embedded in the common law, the rights of which are left with "We the people," unless otherwise specified by the Constitution, as in the enumerated powers given to the federal govt. Despite that familiarity I wasn't familiar with the "history test" as formal doctrine. 

She, in the part that's subtly tendentious and subtly anti Gorsuch/anti Originalism, contrasts the ostensibly cramped, crimped nature of Originalism as a method of historical judicial analysis confined to only a few founding texts, and prone to ideological manipulation, with the good Stone like, Kennedy like use of history to come to good conclusions, i.e., liberal/progressive ones. But her critique is flawed by a minor point: in large measure she doesn't know what she's talking about on matters Originalist large and small. Or she's intellectually dishonest. 

For example, she mistakes and mistates its basic premise, her ignorance or dishonesty glaring in missing the profound theoretical shift in the early 2000s from intention Originalism to public meaning Originalism. LePore ignorantly or dishonestly  asserts the former as if it's still good theory and says 0 about the latter. A sure sign that someone doesn't know their brief is discussing the older theory. 

Originalists decry trying to get at the founders' intentions or answering how the founders would rule in present cases. The theory now has it that the general provisions of the Constitution must be understood by the public legal meaning the terms had when enacted. The principles behind this insistence being fairness comprised in due notice and being the separation of powers. Giving modern meaning to original terms is an act of amendment robbing citizens of fair notice of the law and allowing unelected appointees to usurp the legislature. 

For example, she slags Gorsuch as backward looking, her euphemism for reactionary. Worse, she selectively quotes him as though he concedes that about himself. But as he made clear in the hearing, Originalism is, for him, a forward looking theory that respects original public meaning in order to respect the unelected judiciary's limited role in U.S. democracy and in order to give fair notice but is applied, when original public meaning of itself isn't dispositive, even after putting that meaning in context of the structure of the law and language-derived purpose the words are aimed at, by analogically reasoning to present cases. In a nutshell it's a theory of properly determining the law and applying it. 

For example, she doesn't acknowledge that there's an Originalist case to be made that Plessy was both wrongly decided on and is, in effect, in its error, an example of errant living document theory. And she similarly doesn't acknowledge that there is a case that Brown can be read to have been decided on originalist grounds. It's not that she has to agree with these arguments. It is that she's silent about them in effect asserting they don't exist.

For example, so eager is she to decry Originalism as conservative gobbledygook to yield preferred judicial outcomes, that she pays no attention to a whole school of Originalism that sees in original public meaning the seeds for liberal interpretations of the Constitution. 

For example, she omits that it's now malpractice to argue in appellate courts without presenting, along others, originalist arguments.

Finally, for example, not that what I'm saying is exhaustive, she makes no reference to Textualism, a kind of New Critical legal theory that says legislative intent is to be derived solely from the text, seen in itself and in context with its statute, regulation or executive order as a whole, (bracketing precedent for the moment.) Originalism is a subset of Textualism. 

The more I wrote this, the more critical I became of LePore here. And the less subtle do I think is her hidden agenda...


http://www.newyorker.com/magazine/2017/03/27/weaponizing-the-past

Sunday, March 26, 2017

A Note On Gods And Man In The Odyssey

3/27/17

A Total Amateur's Note On The Odyssey 

I know even less about Homeric epics than I do about Chaucer and his times. 

And I find it hard to get my mind fully around the relation between gods and men in The Odyssey. 

Nevertheless, having read the epic, here are a few scattered observations on that relation that may possibly hold together. 

Homer's gods seem human, full of caprice, folly, vengefulness, anger, feuding, pettiness, jealousy, even evil. They meet and mix with humans, converse with them, have feelings for them, seduce and rape them, aid them in all sorts of ways, and conversely deceive, obstruct and destroy them. But too, these gods, being gods, are immortal, and, so, get to be forever young. And, too, they shape the courses of human events

They're different  from the Christian God of the three omnis--omnipresent, omnipotent, omniscient--and who is but the ideal, the just and the good. The Old Testament God is a touch more human but singularly and augustly divine compared to Homer's gods. Still for all their humanness, his gods still raise in The Odyssey the unresolvable tension between free will and fate. 

Humans in Homer are said to be god like when they excel in some way. However, when they try to exceed the human and get too arrogant and too prideful they display hubris and suffer in the consequence whatever misery the gods cause them. Mortals must observe limits. They cannot contend against the gods who are more powerful. Men must placate that greater power. And so, for example, sacrifices to the gods are common.

The gods favour some men and disfavour others. Favour facilitates success. Disfavour brings misery and death. Athena strongly favours Odysseus and Athena inclines in every way to help him and his son Telemachus, who is as well virtuous and noble. She wants Odysseus successfully to return to Penelope and retake Ithaca. But Poseidon hates Odysseus, who blinded his son Polyphemus. He strives to make Odysseus’ life miserable by causing storms to get him off course and wreck his ships. In all this, the gods hold power and men must try to please them, or at least, as gods contend against each object, please those who win Zeus's ultimate sanction.

We see in The Odyssey god caused or guided action framing human initiative and action; and we find men and gods reacting to each other over the courses of the epic, which is the interplay of the divine, for good and for ill, and the human, for good and for ill. It isn't the case that men are mere puppets in the gods' hands. There is human choice and will and characters are to be judged and fated accordingly. 

And so, finally, there is a sense in which the gods stand behind the resolution flowing out of both the good and bad men do. 

Thus, in largest example. Odysseus's final successes in reclaiming land and queen flow out of his heroism, virtues and nobility as instrumentally helped in the end by Athena as Mentor. Of necessity, that occurs by way of  the suitors' slaughter, causally flowing from their lust, sloth, greed and inhumanity. They are destroyed in part by the same instrumental actions of Athena as Mentor. The nexus between fate and righteous or ignominious behaviour is evident in the innocent two amongst the company of Penelope's suitors who escape killing. 

All of this happens with the sanction of Zeus. Zeus at a remove sanctions Odysseus's triumph by allowing it and at a remove sanctions the suitors in allowing their slaughter.

An Originalism Doughnut Hole?

3/26/17

Originalism:

a brief exchange between my friend and me pointing to what seems a big conceptual problem with it:

My friend:

....One point is that the Public knew more by 1954 about the difference between separate black and white schools than was known by the Plessy court. 

Leaving aside whether Brown is or isn't justified on originalist theory, what about when facts evolve?

If in 1789 the public didn't think solitary confinement was cruel and unusual punishment but psychological studies now show a much more profound effect on a prisoner than was known in 1789 can a court today call it cruel and unusual?  In one sense they would not be applying the public meaning the words had in 1789. In another sense maybe they are as they are taking the meaning of cruel and unusual as words, and giving them meaning based on better understood facts. 

Me:

...You raise a good point. 

I think the idea of evolving facts raises a question that doesn't trouble originalists because they seem to say that original public meaning isn't tied to specific applications. They draw a big distinction between meaning on one hand and implementation and application on the other. 

I'm on reflection not so convinced by this distinction and it leaves me with a big question. Which is to say, if you take away the original applications of the original use of the terms what are you left with? Aren't you left with a verbal husk so hollowed out and general, "cruel and unusual," for example, that it can be used to apply to new forms of "cruel and unusual?" 

So that if we detach originally application from original meaning, aren't we in effect in the realm of the "living," so to say, who argue some of the original terms are broad by design and are meant to "adapt themselves" to changing conditions? So it seems the more specific is the language in issue, the greater is the force of of an originalist approach but the more general the language the more elusive is its theoretical promise. This distinction makes sense to me. 

So for example, getting back to Brown, what does "equal protection of the laws"  mean in its original public meaning unless understood by its use in application?

After all, an argument for the originalist reading of Brown is to show how right after the passage of the 14th Amendment there was a big political effort to pass transport law using the Amendment's words to guarantee equal integrated access to all to train travel. Isn't that original public understanding by original use in application? If not, then, again, what's to distinguish an originalist from a living theorist if only the abstract idea is to be considered?

Thursday, March 23, 2017

Textualism, Gorsuch Confirmation, And A Microcosmic Case, Trans Am Trucking


3/22/17

Gorsuch hearing: the microcosmic case more fully described.

....statute forbids employers from firing employees who “refuse[] to operate a vehicle” out of safety concerns...

Here a trucker in work was driving a truck attached to a trailer. 

The breaks on the trailer froze in a freezing cold night. 

The trucker pulled over and was told by the employer company to wait for help to come. In the meantime he was facing hypothermia. 

So he detached the truck from the trailer and drove it to get some warmth. 

The company fired him.

The driver moved, filed a complaint, before the labor board against being fired.

The board dismissed his complaint. 

The trucker then appealed to a reviewing tribunal. 

It reversed the dismissal of the complaint and awarded back pay and ordered reinstatement. 

The company then sought a further administrative review and was shut down there too. 

Then the company sought judicial review to the 10th Circuit.

A majority of the court, two judges, denied the company's petition for review.

Gorsuch dissented.

The issue turned on the construction of the initially noted provision that more fully reads, as cited by the majority.

...49 U.S.C. § 31105(a)(1)(B)(ii) ...makes it unlawful

 for an employer

 to discharge an employee

 who 

"...refuses 

to operate a vehicle 

because . . . 

the employee has 

a reasonable apprehension

 of 

serious injury to the employee or the public 

because of 

the vehicle’s hazardous safety or security condition..."

All those deciding for the trucker held that refusing to operate included his unhitching his truck from the trailer and driving off to get some warmth back in his body.

Gorsuch saw it differently: (I've broken this into smaller paragraphs) pages 19--23:
------------

....The Department of Labor says that TransAm violated federal law, in particular 49 U.S.C. § 31105(a)(1)(B). 

But that statute only forbids employers from firing employees who “refuse[] to operate a vehicle” out of safety concerns. 

And, of course, nothing like that happened here. 

The trucker in this case wasn’t fired for refusing to operate his vehicle. 

Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. 

The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. 

And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. 

Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law. 

But it isn’t there yet. 

And it isn’t our job to write one — or to allow the Department to write one in Congress’s place. 

My colleagues suggest that the Department should be permitted to read the statutory phrase “refuse[] to operate” to encompass its exact opposite and protect employees who operate their vehicles in defiance of their employers’ orders. 

They justify this unusual result on the ground that the statutory phrase is ambiguous... 

...the statute is perfectly plain — and plainly doesn’t capture the conduct here — just as TransAm suggests. 

The term “refuse” means “[t]o decline positively, to express or show a determination not to do something.” 8 The Oxford English Dictionary 495 (2d ed. 1989). 

Meanwhile, “operate” means “[t]o cause or actuate the working of; to work (a machine, etc.).” 10 id. at 848. 

Putting this together, employees who voice safety concerns about their vehicles may decline to cause those vehicles to work without fear of reprisal. 

And that protection, while significant, just does not give employees license to cause those vehicles to work in ways they happen to wish but an employer forbids...

...in (the majority's) view, an employee should be protected not just when he “refuses to operate a vehicle” but also when he “refuses to operate a vehicle in the particular manner the employer directs and instead operates it in a manner he thinks safe.” 

Yet those words just aren’t there; the law before us protects only employees who refuse to operate vehicles, period...
----------------------------------------

In a nutshell:

1, "refuse to operate" doesn't mean or include as a meaning "to operate."

2, The harshness of the result doesn't obviate that plain lexicality.

3, The harshness can't justify judges calling the provision ambiguous when it's not.

4, It can't justify judges adding words to legal provisions to change significantly their meaning.

5, it can't justify judges resorting to statutory purpose, here employee health and safety, to make clear words mean something different than what they say.

6, It's for the legislature to add legislatively such words as will cover the scenario the facts of this case raise. 

And there you have it, textualism in stark practice, for good or for ill,  vividly illustrating a major theme running throughput h the hearing, and explicitly dividing what conservative judges do and what liberal judges do.

For good or for ill.




Friday, March 17, 2017

The Undoing Project

3/17/17

Michael Lewis's The Undoing Project:

Behavioral economics combines economics and psychology to assess patterns of conduct in the vast array of economic choices people typically make. The work of Israeli psychologists Daniel Kahneman and Amos Tversky paved the way for it. Their lives, collaboration, friendship as male soulmates and work all form the subject of Michael Lewis's book.

Lewis turns all all of this into compelling, even page turning, reading. I say that as someone fairly innumerate with little feel for mathematical psychology, statistics or economics. 

Lewis tells great stories about these world class brainiacs. And gives a "For Dummies" course in some of their basic work but manages to make it an exciting story too as synthesized with their lives and deep, deep relationship, a love affair of a kind. The two so often become one, but just as often remain separate and individual, It's like getting inside a human dialectic, seeing it from the inside. 

A few exemplifying details: they'd lock themselves inside a seminar room for hours, working together on one typewriter, a good day being when they got one sentence or maybe a paragraph or two done; people walking by the room would hear bursts of spontaneous conversation switching back between Hebrew and English English laced with continual loud laughing.

Tversky, a sabra, a military hero, loud, intellectually aggressive and singular--he simply did what he wanted, social graces be damned, was, every who met him said, the most brilliant person they'd ever met. He'd cut instantly to the core of any issue. His good working hours were between midnight and 4:00 am. Stanford offered him within the space of one day a full, chaired professorship for life. He was full of one liners, many of which Lewis reproduces. One of my favorites, I paraphrase, not now having the book at hand: "Research requires wasting of a lot of time." I did though note of what he said about metaphors in thinking: 

....They replace genuine uncertainty about the world with semantic ambiguity. A metaphor is a cover-up...

Technically a sabra, Kahneman, born in Tel Aviv, grew up in Paris. Hs family ducked and dodged around southern France to evade the Nazis. After the war, his father dead, Kahneman's family made its way to Palestine.

Such an opposite in many ways to Tversky was Kahneman. He was obsessively messy to Tversky's anal neatness. He was introspective, anxious, a depressive, constantly self doubting and non combative. Tversky was an optimist. Kahneman wa a pessimist. Even though ideas poured out of him non stop, he worried that he'd run out of them, even though he never did. 

Despite all those differences, they became one in their work. Dare I say it: they completed each other: Tversky, brilliantly mathematically oriented and logically rigorous tending to the mathematical in psychology, Kahneman, mercurially creative, highly imaginative and intellectually probing as well but inclining to the emotional and subjective in psychology. They come totally alive in Lewis's portraits of them. 

They did ground breaking work in, broadly speaking, most broadly believe me, undoing the model in economics of man as a rational being making rational economic decisions based on incentives and disincentives. They showed that in judgment and decision making people behave irrationally, but that their irrationality can be systematized by the common recurrence of the same errors such that they're foretellable. 

They categorized these errors as common heuristics or rules of thumb that actually involve the mind playing tricks on us in our illusion of rational analysis, such as, for simplistic examples, by overweighting the first thing in a sequence that occurs, "anchoring," or comparing what is being faced with what is most available to us in our experience, "availability." In line with that, one of Tversky's standard pieces of advice was that whenever possible never make a decision on the spot, always give yourself time, (say overnight) to think it over. So perhaps, not for nothing, did Kahneman, as it happens after Tversky's death, come out with his massive best seller “Thinking, Fast and Slow.”

Lewis has it that typically they undid conventional thinking in many disciplines and that Tversky, untutored in them, with just some basic information could soon hold his own at a minimum on discrete issues and often come to understand the issues better than his "tutor." So not for nothing did Kahneman, a psychologist--Tversky having died--get a Noble Prize in economics for their revolutionary work on the irrationality in judgment and decision making in economic choices. 

Lewis traces what finally led to their "separation" as time went on and Tversky got the lion's share of the recognition and plaudits and tended to internalize it all to Kahneman's growing dissatisfaction. 

All in all, Lewis's book is a joy to read, for its human interest in the way he embeds what he writes in a story, for his graceful, clear prose and his accessible explanation of the some of the work of these two great scientists.

Most highly recommended. 

https://www.amazon.ca/Undoing-Project-Friendship-Changed-Minds/dp/0393254593





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Wednesday, March 15, 2017

On The Argument From Liberty On Health Care

3/16/27

On the argument from liberty re health care:

(Spoiler alert: I emphatically reject it.)

Some on the right claim that at the bottom of the issue of health provision the bedrock question is how many Americans should be covered. If, they say, the answer is everybody, then that will comprise a breach of the creedal American principle of liberty. Applied here, they say, every American will be forced to get insurance whether they want to or not. In so being coerced, they are being deprived of their choice as to whether to get health insurance. They may not wish to and then they'll have to accept the consequences. 

As put in part by one guy: (see link) 

...The right’s response: Our political system isn’t designed to ensure parity of outcome. It exists to enshrine the freedom of the individual from coercion by the state and to provide for the working of a free society outside government control....

What rubbish! 

It can't, I argue, withstand even mild analytic scrutiny. 

I say that as someone who has some sympathy for the *legal* argument that the Commerce Clause could not be stretched to the point of the federal government ordering, generally speaking, on pain of sanction, every adult American to purchase health insurance. States can but not the federal government.

But as a philosophical matter, the reasoning is different.

For example, philosophically, why ought the state acceptably compel everyone who drives to buy or be under a policy of car insurance? What is the principled difference between that compulsion and the requirement to buy health insurance? I can imagine an argument that people needn't drive and that if they wish to, that's simply a condition of that privilege. On the other hand everyone has to live. That's not a privilege and to compel health insurance is therefore necessarily to trench on individual liberty. 

But is that a good enough answer? What is it about driving that makes liberty lovers accept that state compulsion? What are the criteria for acceptable and unacceptable state compulsions when viewed from the angle of liberty? The broad point of insurance is to protect against risk. With driving, universal insurance rationalizes a complete system of fault and compensation for inevitable accidents with the state stepping in to fill in gaps as (say) posed by uninsured drivers. So whatever the precise criteria are, they have, extrapolating from the car insurance example, something to do with defining the public good by way of a systemic answer to the inevitability of loss and harm. 

We might ask the liberty lovers, why, philosophically, they're ok with compelling universal car insurance. Why not leave it to each individual to get insurance that addresses the contingency of an accident that involves uninsured or unlicensed drivers?  But we can imagine the result of scrapping the insurance requirement: many, many drivers likely won't get it; they'd just take their chances. And we can imagine the result: most generally utter social chaos; and, slightly more specifically, accident victims or their families left without a remedy. Driving is more than a privilege. It is woven into the very tapestry of daily life for most of us. 

So all that said, I have trouble seeing a principled philosophical difference between the car insurance and the health insurance instances. It's simply unthinkable that the uninsured sick, including of course their children of all ages, will be left to malinger and die from medical inattention, just as it's unthinkable that those injured, maimed or killed in accidents and their families as the cases will be left uncompensated. And there's an obvious parallel manifest public unfairness in allowing those without insurance to skate free from their faulty driving while likely the state, via tax revenues, provides compensation, just as there is in allowing those without health insurance and their defendants to get cared for regardless when ill and at the same public expense. 

So I argue that when seen from the standpoint of liberty, there is, philosophically, no principled difference between compelling car insurance and compelling health care insurance. 

As my friend D wisely once said; 

...But principles are not theories; they are action guiding , and normally there are contrary principals, also action guiding, and there are no super principles for selecting principles. That is what Aristotle meant when he asserted, against Plato, that values are incommensurable (correct spelling; the computer is wrong - see OED), i.e., there is no value that is a yardstick higher than all other values that can determine which of two conflicting principles should prevail in a given situation. So, if, say, freedom/liberty are in conflict with the demand for social security in a given situation, there is no principle that can resolve the issue; a practical decision has to be made by responsible men of affairs. That is why libertarianism/free market theory is so cockeyed; it elevates individual freedom over all other social values as the yardstick by which various proposals are decided. If  the necessities of freedom are in conflict with the need for social security, freedom trumps everything, and social security loses automatically. But I reckon that Aristotle knew a thing or two more than Milton Friedman ever did, or could...

There is even a stronger answer, I think, to the liberty argument, one that makes it entirely impertinent. And that is getting rid of insurance as the essential model for health care provision. That's the nature of single payer health care. The "risk pool" is every citizen  and the funding is by way of general revenues derived from taxes and I suppose state borrowing, which is also eventually repaid by tax revenues. That's the essence of Medicaid. Who's going to contend that those on Medicaid are being denied their liberty, are being coerced into anything. The notion is preposterous. The liberty argument in relation to single payer health care dissolves into a mere sloppy puddle of category error. 

And there you have it, as I see it.

Tuesday, March 14, 2017

Review Of I Am Not Your Negro

3/14/17

I Am Not Your Negro

I just saw I Am Not Your Negro. I just recently saw that the reviews for it are massively positive, like almost to a review 4 out of 5 and up. This film is getting into Harvard with these marks. 

There's a telling scene that speaks to this doc's power. The film opens with and then occasionally cuts back to a rapt Dick Cavett interviewing Baldwin on one of Cavett's sixties' late night shows, up then against Carson, who in ratings Cavett couldn't keep up with.

After each question, Baldwin launches into one of his lengthy and uniformly powerful "I give witness" orations about the collective American black man standing on the edge of doom and so, in Baldwin's reasoning, America as well. It does as well since its moral status and very fate is tied to its treatment and to be hoped for resolution of its horrible legacy of slavery and the systemic discrimination that came after and persisted at least until the passage of sixties' civil rights legislation with systemic remnants lingering still. Baldwin is eloquent and powerfully effective in his answers, speaking out of his own experience and what he has seen  before going to Paris, read and heard about while there, and what experiences and observes on his return. There is then, at that time, virtually no gainsaying him as witness. 

The doc latterly cuts back to the Cavett show and Cavett brings to the set another guest, his revered Yale philosophy professor Paul Weiss, who Cavett has on from time to time to do some audience friendly philosophizing. Cavett asks Weiss, who is clearly Jewish and looks to be in his late fifties or in his early sixties, what he thinks of what Baldwin has said. Weiss says, maybe self protectively, maybe not, that he hasn't heard all of it but that of what he's heard he agrees with some of it and disagrees with some of it.

The doc focuses then on what Weiss says he disagrees with, which I paraphrase as:

"We're all human, with more in common than what separates us by skin colour. Why is everything you say so insistent on dividing us by black and white? I have more in common with a black scholar than with a white man who rejects scholarship. You have more in common with a white author than with a black man who rejects the importance of literature."

Baldwin's blazing answer, another leap into effectively powerful self dramatizing oratory, summons up in short order the history of white oppression of blacks in American, its continuity into the present, perhaps 1965, maybe a few years later, and how in order to write with a clear mind and heart Baldwin left America in 1948--he simply had to get out--and wound up in Paris with $49.00 in his pocket. He was, he says, answering Weiss, safer and more at ease in Paris as poor as he then was, a kind of stranger in a strange land, than he would have been in America, where at any time he was in danger of racist violence. 

In a word, his answer blows Weiss away and makes his plea for less racial dividing and more non racial focus on us all as individuals appear naive and seemingly unaware of the context of what Baldwin is saying in answer to him and what he talks and writes about generally--essentially America's horrible and murderous racist past and present.

So, where we see Baldwin bearing witness to this history of racist depredation that still finds itself alive in the sixties on his return to America from Paris, the doc is searing and moving and is right.

But, as Matt Stoller Zeitz writes in his otherwise laudatory review Of I Am Not Your Negro:

....Peck [the director] miscaculates, I think, in lifting us out of the 20th century and linking many of Baldwin's observations about his own time to events and cultural developments that occurred after his death. Mixed in with the historical footage and photos and the scenes from old movies are bits from trashy daytime talk shows and reality TV shows, and images that allude to the financial meltdown of 2008, the Ferguson uprising, Barack Obama's election, and the presidential campaign of 2016. These elements don't damage the movie too terribly. But they do break the spell Peck weaves. And there are times when the present-tense stuff diminishes the timelessness of Baldwin's observations by connecting them too bluntly to American life in the second decade of the new millennium. Like Baldwin's writing, this movie will always be relevant, and yet here it is, dating itself... 

I'd get even more pointed than Stoller Zeitz. The miscalculation lies in the assumption that what Baldwin bore such powerful and eloquent witness to in the sixties and before is continuous with (say) the microcosmic killings of Trayvon Martin and Michael Brown. As if they were simply unmitigated murders fitting within the "narrative" of whites' oppression of blacks, of lynching, and of white power bringing down its boots at will on hapless black victims. As if between now and then nothing has changed. As if America is still clothed in systemic racism. As if these and other events are free of complicated specifics that explode the seamlessness of the fit with the narrative. 

Here, and in other places in the doc where Peck has the witness Baldwin bore still telling for America today, which of course is far from racially ideal, he manages, at least to my maybe contrarian ears, to make Baldwin come across as shrill, strident, apocalyptic, overly self dramatizing and histrionic. 

There are other more minor irritations, from which I think larger problems in the doc and with Baldwin too can be extrapolated. One is showing Baldwin castigating, as he has it, the soppy, sentimental wretchedness of the culture standing behind Doris Day's singing for never confronting the culture standing behind Ray Charles's magnificent, soulful singing. 

Where to start? 

One, Day is an apple. Charles is an orange. Why set up a straw man of the need for the apple to confront the orange. 

Two, here Baldwin's had racially sourced blinders that prevent him from realizing what a terrific singer Doris Day is. She could swings, has that swinging  pop in her singing. Her voice is strong, pitch perfect, agilely supple and tremendous in its conveyance of mood and in its dynamics. 

Three, in Baldwin's blinkered demand for a (needless) confrontation, he's blind to the genius of an aspect of the culture Day stood for and on, the great white jazz bands and the great white female jazz singers of the first 3/4s of the 20th century. 

Four, indeed, here's where Weiss has a point to make about Baldwin's relentless, at times undiscriminating, racial division. Baldwin's dismissal of Doris Day here is like reducing Elvis to his movies, or Sinatra to his persona, or Sammy Davis to playing the token for the rat pack. 

Five, I think the demand for confrontation shows some of the rigidity of Baldwin's apocalyptic analysis even then; and that itself shows by how the last 50 odd years make the doc's continuing the past into our moment so misconceived. 

All the above said, I'd recommend this film: it's always engaging; Baldwin is a huge, powerful figure and witness; and his largeness gets its due. I'd give it 3.65 out of 5.