Friday, March 31, 2017

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


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...

Sunday, March 26, 2017

A Note On Gods And Man In The Odyssey


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?



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. 


...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


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



to operate a vehicle 

because . . . 

the employee has 

a reasonable apprehension


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... (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


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.


Wednesday, March 15, 2017

On The Argument From Liberty On Health Care


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


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.

Sunday, March 12, 2017

Interpreting The Third Verse Of Joni Mitchell's Little Green

Massive (fun) argument today with my daughter Lainie on this verse from Little Green, third track on Joni Mitchell's Blue:

...He went to California
Hearing that everything's warmeru there
So you write him a letter, say, "her eyes are blue"
He sends you a poem and she's lost to you
Little, green, he's a non-comformer...

My reading: she gives up her daughter due the call of art.

Hers: she loses her daughter when her daughter's father won't support his daughter, responding to a plea for his help--"her eyes are blue"--with something unrelated and non responsive--"He sends you a poem"--which makes her understand no help is coming and she can't raise her daughter alone.

My further thought: Maybe the two views merge in this: if she weren't personally sacrificing so much for her art she could get a normal job and raise her child as a single mother. But the thing she can't do is all three of: pursue her art; work ow when she has to; and raise her daughter alone. So she gives up her daughter for adoption. And what does she do right after: she continues pursuing her art. In that how different is she than the kid's father.

All the lyrics:

Born with the moon in Cancer
Choose her a name she'll answer too
Call her green and the winters can not fade her
Call her green for the children who have made her little, green
Be a gypsy dancer

He went to California
Hearing that everything's warmer there
So you write him a letter, say, "her eyes are blue"
He sends you a poem and she's lost to you
Little, green, he's a non-comformer

Just a little green
Like the color when the spring is born
There'll be crocuses to bring to school tomorrow
Just a little green
Like the night's when the Northern lights perform
There'll be icicles and birthday clothes and sometimes
There'll be sorrow

Child with a child pretending
Weary of lies you're sending home
So you sign all the papers in the family name
You're sad and you're sorry but you're not ashamed, little green
Have a happy ending

Just a little green
Like the color when the spring is born
There'll be crocuses to bring to school tomorrow
Just a little green
Like the night's when the Northern lights perform
There'll be icicles and birthday clothes
And sometimes there'll be sorrow

The song as sung:

Thursday, March 9, 2017

The Franklin's Tale As Resolving The Theme Of Marriage


I may offer a note or three on a thought or three on a few of the Tales.

The Frankiln's Tale as resolving the theme of marriage: 

As I read The Franklin's Tale it resolves the extreme positions on the relations between men and women in marriage taken in the related tales: who shall have sovereignty, who shall be compliant to whom and who shall endure suffering and if so how much, how to act properly and so on. 

Nobility of spirit fills the tale and breathes life into the themes of love, honor, sacrifice, fidelity to truth, promise keeping and the expansiveness of compassion as at the core of an unconventional ideal of love as manifest in ideal marriage. 

Arveragus rejects the idea of Walter from the Clerk's Tale. He doesn't expect, assert or impose sovereignty over his wife. And in kind Dorigen rejects "Bathism." She vows constancy and mutuality of obedience in return for his abdication of his conventional husband's superiority in marriage. The Franklin says that in this reciprocality is ground of true marriage happiness. 

The crux of the tale is Dorigen's unserious promise to Aurelius to be with him if he removes the stones from the shore, which the magician for 1,000 pounds appears to accomplish. She is caught between the honor of keeping her unmeant, flippant  promise and her constancy to her husband. 

She asks Arveragus what he would have her do. But he asserts no authority over her. He respects her autonomy and her honor. In advising her to commit adultery he will not as such be cheated on; nor will his wife be inconstant as such. In consenting to her fulfilling her promise, he vindicates at his own expense her personal autonomy evident in her promise keeping. 

When she meets Aurelius and explains the considerations and forbearances that she and her husband have undergone in finally having her come to him in this dilemma-wracked situation, he, in a moment of nobility and compassion is moved by the nobility of both Averagus and Dorigen. Out of compassion Aurelius releases her from her covenant to him. 

(Updated version, even though Chaucer's poetry is so much better) 

Aurelius then gave this matter thought,
As in his heart he had such great compassion               
For Dorigen, lamenting in this fashion,
And for Arveragus, this worthy knight
Who bade that she be faithful to her plight,
So loath to see his wife break any vow.
And in his heart he had great pity now;                    
Looking for what was best from every side,
He'd rather leave his lust unsatisfied
Than do this churlish deed, so wretchedly
To act against such fine nobility;
These were the few words of Aurelius:

 "Now, Madam, tell your lord Arveragus
That since I see this man's great nobleness
Toward you, and I see, too, your distress,
That rather he'd have shame--sad that would be--
Than have you break the vow you made to me,                
I'd rather suffer woe my whole life through
Than to divide the love between you two.
So, madam, I release you here and now,
Returning to your hand each oath and vow
That you have ever made to me or sworn                     
Back to the very day that you were born.
I pledge my word, you I will never grieve
For any promise. Here I take my leave,
And of the truest and most perfect wife
That I have ever met in all my life."                      
In what you promise, every wife, take care!
At least remember Dorigen, beware.

As I see it, Arveragus affirms Dorigen as his equal and affirms her integrity in keeping her promise to Aurelius. As an equal, her promise binds her as much any he may give and be honor bound to keep. His love for his wife entails his own painful selflessness as does hers for him.

Finally, the ethic of compassion is ever expanding. When Aurelius recounts these events to the magician, to whom , as noted, he's indebted for 1,000 pounds for making the stones off the shoreline appear to disappear, the magician is moved to forgive this debt both out of his own compassion and as affected by the virtuous examples set.

Monday, March 6, 2017

A Suggested Reading Of Chaucer's The Clerk's Tale


The Clerk's Tale 

I'm now reading the Merchant's Tale but I'm having trouble getting The Clerk's Tale out of my mind for its portrayal of sheer evil--the notion of existential evil occurs to me--in Walter's depthless tormented testing of Griselda, who, stretching all credibility  beyond any conceivable breaking point even when allowing for presentism, dutifully and lovingly takes it all and accepts it all. Why the exaggerated-to-the-point-of-disbelief abhorrent cruelty--the murder of her children as he has her believe; and why the beyond-belief docile and self abnegating acceptance of it all by Griselda? Is it all rescued and set aright by the Clerk's final editorial ameliorating words at tale's end--wives be not so meek and submissive but as well be constant in adversity? 

I think not. 

What I think is that the tale, apart from the usual noted contrasts in the treatment of marriage with the other tales, is radically subversive and subsumes too the Clerk's final moderating advice. To my mind, the radical subversion works in at least three ways: 

first, it savagely pummels into wretched absurdity the roles and conduct men and women were conventionally held to at the time; 

second, in a parallel way it explodes the literary forms, conventions and precedents that conveyed these conventions. It does so by stretching the tale first into sheer unbelievability in the cruelty and its acceptance, and second having that incredibility  make ridiculous in its insufficiency the temporizing final advice that platitudinously counsels, as noted, a balancing of less humility than Griselda with constancy in adversity. 

The Clerk says his story isn't a model for wives to follow Griselda in humility but that everyone ought to be constant in adversity. In that, the moral is discordant with the exemplum. And, is there scriptural allegory involved; might there be echoes in Griselda of the story of Mary? But if Griselda echoes Mary, what does that make Walter? He seems, to put it in modern terms, a case study in existential evil, evil, that is to say, which exists for its own sake and satisfaction but is dressed up in the tale as mere testing conduct;

and third, in the way (say) of black humour, the reader who follows the story uncritically and is satisfied by and accepts the Clerk's final platitudes of advice as resolving everything is made the unthinking fool in the way that those who laugh at the horror and cruelty of black humour become in a way complicit at what arouses their laughter.

Listen, what I know about Chaucer scholarship and criticism wouldn't fill a small thimble. I don't whether anything like my reading of the Clerk's Tale has ever been proposed. But the way I'm seeing it, especially with Chaucer appearing to be in the "devil's camp" with the Wife of Bath, the way it's said Milton is with Satan, is the only was I can make sense of it.