My reading of Wallace Stevens’ poem, 989. Less and Less Human, O Savage Spirit - Wallace Stevens

 

My reading of Wallace Stevens’ poem:

989. Less and Less Human, O Savage Spirit - Wallace Stevens

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If there must be a god in the house, must be,

Saying things in the rooms and on the stair,

Let him move as the sunlight moves on the floor,

Or moonlight, silently, as Plato’s ghost

Or Aristotle’s skeleton. Let him hang out

His stars on the wall. He must dwell quietly.

He must be incapable of speaking, closed,

As those are: as light, for all its motion, is;

As color, even the closest to us, is;

As shapes, though they portend us, are.

It is the human that is the alien,

The human that has no cousin in the moon.

It is the human that demands his speech

From beasts or from the incommunicable mass.

If there must be a god in the house, let him be one

That will not hear us when we speak: a coolness,

A vermilioned nothingness, any stick of the mass

Of which we are too distantly a part.

I’m in the midst of trying on a counter reading of it.

My tentative thought is that it is our inextinguishable insistence on there being a god that is the savage spirit, one that in its insistence makes us less and less human, and that to be more human is to be alien, alienated, removed, distant, from that, or any, god, as we locate in ourselves as ourselves in the “mass.” 

“god” is “Plato’s ghost,” not Plato, and is “Aristotle’s skeleton,” not Aristotle. 

All the imperative language, principally all the “musts” may be thought to speak to this savage insistence. 

After all, isn’t the imperfect our paradise, lies in hot words and stubborn sounds? (These lines come from Stevens’ poem, The Poems Of Our Climate, https://genius.com/Wallace-stevens-the-poems-of-our-climate-annotated)

A Note To A Friend On A Second Look At LA Confidential

 Just saw it again for the first time since it first came out in 97.

Compelling, absorbing story.

I might pick at a few things though:

Russell Crowe doesn’t let me get inside him in any role he plays. There’s some quality in him, his acting, his natural demeanour, that limits my response to him, regardless of what character he plays. So different from say Denzel Washington who lets me get right inside whomever he plays. I mention him because of the two of them in American Gangster. 

Kim Basinger is an unsubtle actress and while good looking and ostensibly sexy, she doesn’t have the inner ability to radiate heat. 

Also, the ending which includes the ludicrous shoot out, the police department closing ranks, Exley coming out on top and Crowe and Kim Basinger “riding off” into happiness ever after is so “Hollywood.” 

As I watched it, I wondered if it could stand up to Scorsese’s better movies or to Chinatown. I concluded no: it doesn’t have the kinetic energy, the snap and crackle, of Scorsese’s movies. It seems to move along in a solid, sometimes stolid, quiet linear way.  But is it ever really enthralling? I don’t think so.

And it doesn’t have the mysterious blackness and moral ambiguity of Chinatown. Even as LA Confidential’s main characters, the three cops, change, evolve morally, the story line is even with all its twists and turns almost conventional: the corrupt Captain and his cop army finally brought to heel after a ludicrous shoot out, the police department then closing ranks to preserve its reputation and, as noted, “the guy and the girl” riding off into a happy ending. 

And while it’s called neo noir, my idiosyncratic notion of noir—pervasive and basically unremitting darkness—has me thinking it’s not that. Such darkness as the film portrays finds growing shafts of light till the end is relatively sunny. 

I guess the counter to that is the department’s hailing the Captain as a hero in the end and burying his evil. But I still say no though I’m open to rejoinder. 

Body Heat is my idea of true neo noir.

A Note To A Friend On Individual Enlargement And Individual Flourishing

 R:

I suppose some people need to develop high order talents in order to flourish, not raise a family and earn a decent living.   Thus a talented pianist whose hands make it impossible to play well is unable to flourish, and suffers because of that.  But humanistic learning if often touted as necessary to proper flourishing and that I don't believe.  Maybe it's just that humanistic hype that I don't like.  It gives many people a false sense of their size.  

Me:

Which celebrity is the most middling thinker?

Bette Midler.

Anyway, let me, another middler or less in thought, try to do a bit of middling, if that, thinking.

Let’s distinguish between enlargement—or choose your own expanding-in-space metaphor— and flourishing. A person can be enlarged but be short of flourishing. It means—merging a few online definitions and marrying connotation to denotation—being beneficently successful in fulfilling inner gifts. 

So, on that, I quarrel with any notion of self destructive sacrifice to achieve success as a form of flourishing. Flourishing doesn’t entail those sacrifices though it certainly can depend on sacrifice and certain life choices. Whoever sacrifices destructively with much success but says that “It wasn’t worth it,” hasn’t flourished. In fact, the test for sacrifice, which isn’t in any thick sense a necessary condition of flourishing, is the question after success of, “Was it worth it?”

To have experienced, engaged and been compelled by say art—or other things too, but art is a unique category in this, almost a template for it—is expanding of one. But one can be a miserable jerk, feel moved and enlightened by say Measure For Measure and then then still be a miserable jerk but better in his misery for the experience. It’s a paradox but a miserable jerk can be enlarged. 

I more see humanistic learning in this category of personal expansiveness as distinct from flourishing. I reject the proposition that such learning is essential to flourishing. 

Another paradox occurs to me but only tentatively: one may flourish without enlargement. Flourishing is highly individualized and subjective. Bricklayers, plumbers, poets and uncountable others can all flourish in respect of their gifts which need not entail the widening of intellectual or affective consciousness. But enlargement, the expansion of one—again not morally or rendering anyone superior to anyone else—I think can be seen in people objectively. 

I start as X and through what I engage with, experience and am compelled by, I become, as compared to whom I was, X+. And I may or may not have flourished in that.

A Layman’s Note To A Friend On Substantive Due Process, Dobbs And Courts v. Majorities

 I’m not overly familiar with the movement from penumbral emanations to placing for abortion squarely the constitutional basis on liberty as it sits there in the 14th Amendment. I know that Douglas J. in Griswold (I think for the first time) spoke of them. I understand by the time of Roe, courts, and the court in Roe, bypassed penumbral emanations and posited directly a constitutional right of privacy as a necessary legal idea embedded in the tradition of the common law, hence in the Constitution and in American history and traditions. The seeds of the recognition of this right go back to Harvard Law Review essay co-written by Brandeis and Samuel Warren in 1890. https://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html

It’s been called by some legal academics the most seminal law review article ever written.

I’m not sure when liberty became so front and centre in the abortion arguments but it was always hovering over them, there to be used. It was employed for example in the first third of the 20th century to vindicate the sanctity of contract as in the in/famous Lochner case—striking down a regulation specifying the maximum hours bakers could work. The reasoning broadly was that freedom of contract was a fundamental right under liberty in the 14th Amendment, a notion of economic liberty.

So liberty as a constitutionally protected web of unspecified rights is relatively venerable in US constitutional law. It inheres in the idea of substantive due process, which the reasoning in Lochner exemplifies. One scholar has put it that procedural due process asks whether due procedures were followed when taking away life, liberty or property. Substantive due process asks whether there is a good enough reason, a good enough substantive purpose, for the state to deprive a person of these most basics things. 

SCOTUS case law post Roe is littered with decisions based on the “liberty argument.” I’ve already listed examples of the kinds of decisions that argument has yielded. Another example is a case where SCOTUS talked about parents’ fundamental liberty interest with regard to their kids thus yielding all manner of subsidiary constitutionally protected rights in the care and manner of upbringing their children, including for one example home schooling. So home schooling one’s kids is in the U.S. a constitutionally protected right of which there is no mention in the Constitution. (As also noted by the unpleasant Sotomayor in oral argument in Dobbs, SCOTUS as a final striker down of duly passed laws is also nowhere stated in the Constitution.)

So what coalesced post Roe, as I’ve noted, is one strand of the liberty argument, which is nicely put by Post in the last bit I sent you:

“Surely most people would agree that we enjoy the "liberty" in this country of making vital, intensely personal, life-altering decisions - when and with whom to start a family, where to live, what religion to adhere to (or not), who to have sex with (or not), whether to send one's children to public or parochial school, and the like - without interference from the state.’

One of my repeated arguments btw  is that there’s no real difference between penumbral emanations and the application of general principles to specific situations. The former is to my mind but a fancy way of talking about the latter. As Douglas put it in Griswold, paraphrase, “Without the  subsidiary rights that flow from explicitly stated rights, the latter would be stark and barren.” So, I argue, the idea of liberty would be severely stripped down if it didn’t necessarily house the idea of privacy, which itself would be similarly unclothed without the idea of bodily autonomy. All of it, the whole span of rights housing under liberty, only going up to a point.

So what our issue boils down to, since you’re in tune with the  liberty argument as it applies to abortion, is whether the courts or majorities should pronounce on this issue. My insistent argument is that in the US specifically and for me philosophically in the matter of fundamental rights and liberties, we need to be protected from majority decisions, which include whimsical, capricious and prejudicial ones. If it takes a court to ensure minorities equal access to the law, to protect them from racial discrimination, why would we relegate what people can do with their bodies in the way of their most intimate, personal private decisions to majorities? For surely bodily autonomy up to a point is as fundamental as things get.

Finally, you understand as well as I if not better, that the U.S. is a republic and its republicanism qualifies its democracy.  I’d have thought you thought that that is a welcome check on majority hence state power. In this sense your insistence on abortion being left to majority will seems to cut against your general philosophical outlook.

A Note On Why Sotomayor Was So Bad During Dobbs v.Jackson… Oral Argument

My note to S.

I omitted to mention the most important reason why Sotomayor’s manner in oral argument in Dobbs was profoundly out of bounds. 

Court in principle is the calm, deliberative place where the inclination to rage and violence in disputes finds its non violent, rational resolution even as there are ultimate winners and losers. 

Social order needs this place. 

Therefore, judicial temperament is one which is suited to such a place, calm, deliberative, disinterested, studious, civil, polite, respectful, open minded and persuadable, dedicated to reason and so on. 

Sotomayor’s intemperate assertiveness, bullying, interrupting, indifferent imperiousness and actually appearing at least to me to insult Mississippi’s lawyer in the Dobbs argument starkly betray the requirement for judicial temperament. 

In that, she shortened the distance between the court and the fractious outside world. 

Given About To Be Argued Dobbs v. Jackson, A Longish Note On Abortion

 I continue to follow what’s happening with, and think about, the issue of abortion, both as an issue in itself and as a legal issue in the U.S. 

Tomorrow, Wednesday, December 1, 2021 is a big day in these respects. 

The case of Dobbs v. Jackson Women’s Health Organization gets argued  in SCOTUS tomorrow. It involves a Mississippi law that, broadly speaking, bans abortions after 15 weeks of pregnancy, which is to say, just shy of 4 months. The challengers say the law is unconstitutional and cite the precedent of the notorious Roe v. Wade and SCOTUS cases following it, namely Planned Parenthood v. Casey. 

The defence of the rightness of its law by Mississippi, and collaterally by various “friend of the court” briefs, includes an all out assault on Roe v. Wade. Needless to say, this case and the issue of abortion have been pivotal in the U.S. culture war and have done as much as anything to divide left and right. 

So tomorrow marks a huge step along the way to the continuation of the right to an abortion in U.S. law, which then has massive political and cultural ramifications. 

For the right, the moment is as close to ideal as it could be, with 6 conservative or conservative leaning justices—Thomas, Roberts, Gorsuch, Kavanaugh, Alito and Coney Barrett—and three liberal ones—Kagan, Breyer and Sotomayor.

For anyone interested, you can listen to the oral argument here: https://www.supremecourt.gov/oral_arguments/live.aspx

My own view has disparate parts. I never thought Roe v. Wade was wrongly decided, despite a loud chorus of condemnation of its reasoning from many prominent legal academics across the political divide. In a nutshell, my view was and remains that liberty entails privacy and privacy entails bodily autonomy. The limiting principle to my view in the case of abortion is the life of the aborning child. 

The current dividing line for legal recognition of that life given the stream of pregnancy is fetal viability, when the fetus can survive outside the mother’s womb. Under present U.S. law fetal viability occurs at around 24 weeks, just a shade under 6 months. So the Mississippi law is quite radical at making 15 weeks the limit on the right to an abortion. 

Case law subsequent to Roe v. Wade has bolstered its underpinning. I outlined that here: http://tinyurl.com/2p8nzajz  

I did so by a thought test under which I substituted a tonsillectomy or a appendectomy for an abortion. 

Despite my legal view, I have come personally to think that that 6 months is too long and that 12-16 weeks is a more humane limit given the state of the fetus then. 

My personal view notwithstanding, below is an oped by Charles Fried. He accessibly cites the central underlying point of bodily autonomy as the key unlocking the door to a constitutional right to an abortion. 

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From Today’s NYT By Charles Fried

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….Mr. Fried, a law professor at Harvard, served as solicitor general under President Ronald Reagan.

In 1989 I argued before the U.S. Supreme Court in Webster v. Reproductive Health Services, a case challenging a Missouri statute that forbade the use of any state funds or facilities for the conducting of abortions. 

On behalf of the United States I argued that Roe should be overruled, except in extreme cases such as when the life or health of the pregnant woman was at risk. I made these points in good conscience, drawing on a mix of history, precedent and what I saw as the interests of the rule of law.

I was a law clerk to Justice John Marshall Harlan II in 1961 when he dissented in Poe v. Ullman, a case involving the liberty of married couples to use contraceptives without interference or inquiry by the government, and provided what I then considered — and still do — the foundation of the law of privacy and personal dignity.

Abortion implicates not only those liberties of the pregnant woman but also, in the opinion of some, the life of another person, the fetus. Although personally agnostic on that issue, I did not see how the Constitution provides a principled basis for answering the question. 

That Roe was a poorly reasoned extrapolation from the contraceptive cases was a position taken by many constitutional scholars, including John Hart Ely, Paul Freund and Archibald Cox. As Justice Ruth Bader Ginsburg correctly predicted in a later talk at New York University, it was a leap that would shadow the law for decades to come. Perhaps better to have left it to legislation and the development of public opinion.

In 2005, testifying in favor of the confirmation of John Roberts as chief justice, I said that I thought he was too good a lawyer — a conservative in the manner of Edmund Burke and John Harlan, not a reactionary — to vote to overrule Roe. Senators Arlen Specter and Dianne Feinstein reminded me that I had argued the opposite about Roe 16 years before in the Webster case. 

My answer then, as now, is that the law had changed since 1989. In the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, a joint opinion of Justices Sandra Day O’Connor, Anthony Kennedy and David Souter reaffirmed the central holding of Roe and put it on a firmer constitutional basis: the dignity and autonomy of the pregnant woman and the equal rights of women more generally.

Since that time, Casey had been cited and used as a basis of constitutional reasoning in many decisions in many areas of the law, including gay rights and the parental rights of a surviving parent. The decision has not only taken root; it has flourished and ramified.

To overturn Roe now would be an act of constitutional vandalism — not conservative, but reactionary.

When I argued Webster and made the case that overturning Roe would not undermine the broader foundation of privacy, I learned a lesson in the use of metaphor. 

Seeking to invoke my mentor John Harlan, I said I was not urging the unraveling of the whole fabric of substantive due process and unenumerated rights, but only to pull this one thread. To which my opponent replied that in his experience every time he pulled a thread on his sweater, the sleeve fell off…

A Brief Stab At The Correctness Of Roe V. Wade aka The Constitutional Right To An Abortion

 I’ll take a brief stab at this. I’ll confine myself to one’s appendix or tonsils. I can’t see the denial of substantive due process given the lines of reasoning starting with Brandeis’ dissent in Olmsted, adopted in Katz, continued in Griswold, thereafter in Roe and in Casey and further in effusively in Lawrence v Texas. 

These cases’ dicta converge generally on a capacious right of privacy as a necessary constituent of personal liberty and an anchor of liberty rights in the 5th and 14th Amendments. As Kennedy says in Lawrence, citing Douglas in Griswold:

“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” 

As Douglas said in Griswold, and I think, it must be right, 

…. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights. Without those peripheral rights, the specific rights would be less secure…

Given a capacious right of privacy as a necessary constituent of personal liberty, I can’t see how decision to have tonsils or one’s appendix removed isn’t but an instance of such a privacy right, how it doesn’t fit within the rationale evinced by the dicta that all go to establish the right. 

My surmise, substitute removing tonsils for abortion, and it would be hard for me to see any controversy in the assertion of it as a incident of one’s constitutionally protected privacy right.