What I've lately been reading

I have been on a zigging and zagging tear of reading.  I realized maybe I should document it this time around.

1. In the past week, I've finished Bless Me, Ultima (1972), a novel from Rudolfo Anaya, which The Wife had read before me.  We decided we would read it together to help us further understand the culture of neuevos Mexicanos.   We both loved this novel, which combined a simple, yet very elegant style of writing--as the narrator is an elementary school boy in 1940s New Mexico--and a profound meditation in the way non-intellectual people see the world around them.  There are people of the land and wanderers who see the land as a place where people are tied down, and there is always a tension between them.  We see people poor and barely poor who believe their lives are controlled by mystical forces, whether the Virgin of Guadalupe, the Virgin Mary, Jesus, or spirits in the form of a fish.  We also see violence, cruelty, and a punishment culture that combines with macho culture to produce misery and death.  We also see acts of kindness that create the stuff of miracles, and how a loving family maneuvers through poverty, war, and other challenges beyond their control.  

What we each found surprising was Anaya wrote this book at the dawn of the 1970s, and was talking about the 1940s New Mexico.  Yet, the narrative echoes and reverberates deeply into what we have observed among people who grew up and currently live in this State today.  There is a resignation here that things won't and cannot change.  There is a relative lack of self-esteem among people in this State, something I never perceived when living in New Jersey or California. New Yorkers, for example, often love to put down Jerseyans, but Jerseyans, as a mass of people, never agreed.  We'd say, "Oh yeah, f you and the horse you rode in on.  Fuggedaboudit!" (Cue Johnny Pizzerelli's more kind, yet still confident "New Jersey song" here).  In California, the culture tells us every day there is always a new dawn, and the gloomy clouds of the morning clear and the bright sunshine will envelop us with a natural optimism about the future, no matter how bad our day actually happens to be.  Here, in New Mexico, with nearly 300 days of sunshine and similar weather to Southern California, the feudalism which still undergirds much of the State's economy re-enforces a philosophy of "mañana" (waiting until tomorrow what can be done today) and sense of futility that no matter what one does, the forces around us are too powerful and will stop any positive change. What we see is not Renaissance thinking, which focused people on the future, and on pushing forward, but Middle Ages thinking, which is static, unchanging, and controlled by forces that seem or are mystical.  Bless Me, Ultima is about survival and managing to grow within that milieu.  It is a book The Wife and I highly recommend, for its elegant prose and beautiful storytelling, even if you live in Alaska, Kansas, or New Jersey.  

As a final note about the book, I must say, when I put the book down after finishing the last page, I wanted to know where this child was today.  And honestly, I could not picture him in any clear way.  That is not a failure on the part of the author, but the author's triumph.  For the book helps us understand, in an indirect way, how powerful economic forces in our society hold down the poor and near poor to a point that even a thoughtful child can be ground up like so much meat, not even knowing anything about those forces, and instead assuming a mystical reason for the challenges and difficulties they face on a daily basis.  The Wife and I see poor children in the school where The Wife works, and we see first-hand how the school-to-prison pipeline functions.  And we have become more political active here because we see up close what needs to change--and we know here, at least, we do not need as much money to spend to meet and engage with politicians.  We have brought New Jersey "in your face" and California "optimism" to the State, and I think we have made some difference...but hope to make more.

2. On to other reading....I finished Alice Adams by Booth Tarkington (1921), after finally finding it in a used bookstore, and finding an edition which had readable print.  It allowed me to complete Tarkington's culture of American capitalism trilogy, which Tarkington called his "Growth" trilogy (The three are The Turmoil (1915), The Magnificent Ambersons (1918) and Alice Adams).  Ironically, Adams was the most loved among the three, but over the decades, The Magnificent Ambersons has properly eclipsed it, while Adams is more remembered only among film buffs for the 1930s film adaptation.  The Turmoil has completely disappeared from any literary consciousness, which is a shame, as it does have literary and sociological value.  But let's talk about Alice Adams.  It is a book about a twenty-something young woman from an economically declining middle class family.  The book opens with us learning about Alice's father, who has had a nervous breakdown, after thankless work for a decent-seeming, but ultimately callous boss.  Alice, too witty and sharp for her own good in terms of meeting a man, is finding it more and more difficult to fit in the upper middle class, and upper class society she once was able to do as a younger woman in high school.  Alice's mother pushes Alice's father to not return to the job he had, and instead start his own business--taking an idea for a new kind of glue the father had developed in his early years at the company, but which the company never used.  I thought immediately at that narrative point--Uh-oh, work for hire!  Don't do it!  And I then thought, does Tarkington understand this?  The answer is, Oh yes Tarkington does understand this.  And very well.  For Tarkington's understanding of the growing American corporate economic system, and the culture which it engenders in consumerism, in a grasping sort of set of personalities, is incisive, deep, and creatively described.

The Magnificent Ambersons is often seen as a book about the fall of a family that had made money in the 1880s but was losing by the time of World War I.  It is correctly recognized as the story of the hubris of a young neo-aristocrat who realizes, only too late, his sense of superiority derives from the money his family has, not him as an individual.  Tarkington's book is a great explicator of how we are social constructs, even as we see ourselves as "individuals."  But what makes The Magnificent Ambersons so presently powerful is in the counter narrative within that story, which is about the next wave of entrepreneurs, the motor car entrepreneur and magnates. Tarkington's story shows he deeply understood--in 1918!--how cars would profoundly affect our culture.  The novel, through the narrative, shows how diabolical car culture will become for communities, for their role in causing massive pollution, and how the advent of cars will change the way people deal with each other, not only for good, but for bad.  It is as if Tarkington had read the first fifty pages of Jane Holtz Kay's brilliant, Asphalt Nation (1998) and put Kay's wisdom into a novel's narrative.  Tarkington may even be called an environmentalist novelist.  For example, Tarkington's description of what corporate capitalist development was doing to the environment for those living in Indianapolis in The Turmoil, described in the first few pages of that novel--which I greatly enjoyed--is remarkable.

So why is Tarkington not read?  Well, two reasons, one ridiculous and one absolutely correct.  The ridiculous reason is the English literature academy, for the past 70 years, has rejected social realism to a point where social realism is either put down for not being truly "literature" or worse, "bad" literature--unless the social realism is about racism or some prejudice, and the writer is of the oppressed "racial"  or "ethnic" background (cue Toni Morrison, whose prose I find unreadable, or Philip Roth, whose writing is flat and never gives you any sense of place unless you are already come into the text knowing the place).  It is why the literary academy doesn't want young people to read Sinclair Lewis, who, to me, remains our nation's Dickens. 

Tarkington is also not read because he mars his narratives with a casual and sometimes overt racism we can no longer afford to ignore.  The irony is Tarkington himself was what was then considered a "liberal" about matters of race, and probably would have considered himself "anti-racist."  Yet, when black characters appear in his novels, they are in subordinate roles for the most part, and speak with "When Ah's gets to Hebbin, I'm gwina eat watey-melon all the day long!"  And one hopes to find the narration will save him, for Tarkington is writing about Indiana society, which was horribly racist (Here is a photo of a lynching which many of us have seen; but it did not occur in the South.  It was in Indiana).  In The Magnificent Ambersons, in The Turmoil, in The Conquest of Canaan (1905) especially (where the lead character takes on the racist father of the girl he loves, and recognizes that a major part of what he doesn't like about the father is the father's racism), the narrator at least barely critiques that racism or is anti-racist.  In Alice Adams, written in the early years of the 1920s, when the Ku Klux Klan became a "respectable" organization, and casual racism was seen as genteel and a positive attribute, the narrator does not save us.  Instead, the narrator re-enforces the characters' racism.  This all made me feel less sorry for Alice Adams and her family.*  It made me recoil at their utter cluelessness when they try and continually fail to impress richer white people.  It made me say, "Don't you people get it?  You are not the victims in the society in which you live.  It's bad enough you don't want to change the class biases, just get into the upper class.  What makes you odious is your racism and your blindness to what is right in front of you!"  Yes, there is a scene in the book where a black maid speaks her mind about the low pay, and refuses to do a good job for poor pay.  But it is more in the context of a joke--Ha-ha, the family can't afford to pay a good, obedient maid, and this is their comeuppance.  I was thinking by the end, This book would be perfect for young Americans to read today as it shows how many of us so want to be with the rich people in a way that was not true thirty years ago.  But the racism needs to be removed so that the main point Tarkington was writing the novel for, which is an attack on the culture corporate capitalism was engendering in American society, may be properly understood.     

Tarkington was a unique novelist compared to other American novelists of the past 150 years.  Tarkington served in the Indiana legislature, and was a Republican who typified genteel conservatism.  His uncle was an early governor in California, and was related to a Chicago mayor.  See Wiki for a decent summary of his life and work that is nonetheless marred by never mentioning the racism in the novels.  I very much lament Tarkington is not welcome in America's literary academy, but I have decided what needs to be done is a re-editing of Tarkington's novels because the racism can be removed without doing damage to his work.  From what I know of him, he would understand, and possibly be delighted.

* This was personally disconcerting because Tarkington's first novel, The Gentleman from Indiana (1899), is about a young man from an Ivy League school who moves to Indiana to become a journalist and ends up owning a newspaper that goes to battle against "The White Caps" (which is clearly the Klan).  But even in that first novel, while Tarkington shows the Klan to be bad, they are shown to be a menace is to the community, with the menace to African-Americans barely mentioned at all.  It is a strange missing note in an otherwise gritty, fast-paced novel.

3.  I am finishing Roxanne Dunbar-Ortiz's The Indigenous Peoples' History of the United States (2014).   It is fascinating, horrific, and yet profoundly moving reading.  I thought I knew the history of the settler European-American genocide of Native Americans, and I did, but this narrative is what  is so powerful.  Reading this will be a shock to most Euro-Americans, and a consciousness raising for those of non-European heritage.  As I am completing this book, I emotionally want to take our house keys, drive down the road to the Pueblo of Sandia Indians, and say, "Here.  Take back this property.  So very sorry...."  One caveat for me is this is not as scholarly a book as one may expect, and that may be its strength for regular readers.  What I mean is that, if one carefully reads her footnotes, only about ten books are cited with  continued consistency through the first half of the book, though there are much more diverse sources in the second half.  Plus, the bibliography identifies a couple of hundred other books and documentary sources. Still, the books upon which she relies are extraordinary works of history, and what Dunbar-Ortiz does is put them into a deeply thoughtful and incisive narrative that literally overlays the Parkman-Turner Overdrive narratives which may be summarized in this song from Kansas, Song for America.  There was no virgin land.  There was not only a relative few people here before "we" got here.  We learn from this narrative how the Natives had cultivated and farmed the land in the east and upper central west, and how Native Americans in the southwest lived relatively stable lives and even built what we would recognize as relatively high rise buildings. The manner in which Native Americans developed what we would call American federalist political ideals centuries before Montesquieu is beautifully explained.  The work is short on the way in which Native Americans fought each other, even brutally, but that is for another book, I suppose.  From this narrative, we learn how the settler-colonialists, almost from the start, were into replacing the people who lived here, and it was relentless.  It is as if Zod came to Earth, with a multitude from Krypton, to kill and then replace humans on the planet, which was sort of the premise behind Superman: Man of Steel (2013).  Yes, "we" are that bad.  And if you are already soured on General and then President Andrew Jackson, this book will complete that sourness.  

Oh, this is all so one-sided, I can hear people say.  Well, yes, it is.  But what is remarkable is how this book pushes back the overwhelming assumptions we have made in our settler-colonial narrative.  It, again, literally fits over our usual narrative and provides a deeper understanding of who we are, how we got here, and how what we see today is a continuation of what has gone before.  For me, as I come face to face with Native Americans who can trace back their ancestry for hundreds of years--while I cannot get past 1880--and who feel a part of the land in a way I do not and perhaps cannot, this has been another educational book for me as I settle (pun intended) into New Mexico.  Still, for those in other States, this is a remarkable book to read, and it is one that is illuminating, engrossing, and paradigm changing.

4.   I just finished Yanis Varoufakis' Talking to My Daughter About the Economy, or How Capitalism Works--And How it Fails (2017).  As many who know me know, I want Varoufakis to be president of the planet.  He is an amazingly broad and detailed mind, and has tremendous understanding of global economics, world history and politics, all while deeply in touch with popular culture.  I had bought this book for The Daughter this summer, but not living with her, I could not get the lit-major to read it.  When The Wife and I moved The Daughter into her dorm at UCLA last week, I took the book back to read it myself--so I could determine whether I could justify pushing her to read it later.  I read this book in less than a week, as it is just under 200 pages of medium sized book print, and I have to say it is marvelous.  Varoufakis does great a job, in a primer type of book, in explaining world economics, and showing how money is a social construct that is almost always political.  He answers both libertarians and those who disdain political economy in a way that is amusing and, despite its primer structure, profound.  My criticism, for example, of Murray Rothbard's magisterial A History of Money and Banking in the United States (2002) is its belief that money has overriding objective value.  The information Rothbard provides is astonishing and truly enlightening, but his narrative prose shows he misses the forest for the trees. Varoufakis' book, again in primer mode, and with analogies to Mary Shelley's Frankenstein, Star Trek, and films such as The Matrix and V for Vendetta, demolishes that belief.  Money and banking are almost always political, and that is why, in the end, Varoufakis echoes Naomi Klein and others who say the issue for the rest of this century is democratizing economic decision-making. For Varoufakis, the issue is restoration of what he recognizes as experiential value and to not reduce everything to exchange value.  He shows, with real examples, with theories applied to everyday occurrences, and with again an understanding of how pop culture stories may help us navigate our modern world, why this is a project for millennials and digital kids to pursue.  Varoufakis' daughter is a few years younger than The Daughter, and I can bet his daughter yawned at the prospect of reading this, too.  But now that I have read it, I am going to push this on her for a summer read next summer.  It will inoculate The Daughter even further than her own training at UMF (University of Mitchell Freedman) against libertarian nostrums.  :)

If someone asked me, who living today would I most like to meet, it would be Yanis Varoufakis.  He is, for me, truly remarkable.  He is an incarnation of Alexander Hamilton, but, due to the high development of international banking over two centuries, he is the bankers' bete noir.  And because of that, Varoufakis ends up more like Rousseau--brilliant and able to move in and among the elite, but someone not trusted by the elite, and therefore unable to directly influence and change current policy.  Varoufakis keeps fighting, though. One way he keeps fighting, besides writing books and articles, and appearing at various forums, is his promotion of his new organization, DiEM25, which seeks to reform the EU, not destroy it, and not to "leave" it.  Here is Varoufakis with British Labour Party leader, Jeremy Corbyn, in August 2018. Varoufakis recognizes the need for people to culturally want to protect their borders, but he sees economic integration as the key to world people's salvation, environmentally and for other creatures, and not merely for human well being.  

5.  I read A.B. Yehoshua's The Lover last month, and it was, as usual for me, a wonderful, thoughtful, and poignant experience.  Yehoshua writes for those in middle age, and he is truly a Faulkner for Israeli and Jewish readers.  He shows the burden of what may properly be called Israel's version of settler colonialism within the story of individual lives. This particular novel takes place in the aftermath of the Yom Kippur War of 1973.  Within the plot lines, Yehoshua traverses the way in which Arabs and Jews live with each other, even as there is terrorism and colonialism intertwined within the larger society. A nation of oppressed victims fighting each other, and living with each other.  I then immediately read another early novel from Yehoshua, Mr. Mani, which was a less enjoyable novel.  It is a multi generational novel that shows in a creative way how oppressed families move from place to place, and how the trouble is never really left behind.  I think the book sounds better to me now that I have described it, but I found the prose did not sparkle the way it has for me in other Yehoshua novels.  Still, I think younger people may like this novel and The Lover because, in far more than his later novels, here his young people speak loudly and clearly, and often drive important parts of the narratives.  

I am thinking there are other books I've read in the past two months, but I think this is more than enough navel gazing literary endeavoring for now.

Judicial temperament, or how one's politics and judicial philosophy don't have to be the same

This clip of Senator Lindsey Graham questioning now Supreme Court Justice Sotomayor about her judicial temperament is less of a gotcha than I was hoping from the Crooks and Liars website headline.  Sotomayor was nasty on the bench, according the lawyer ratings.  Kavanaugh does not have a reputation of being nasty in an appellate argument setting, does he?  His opinions, though, appear to be Scalia-like, much like Goresuch's were, which means they tend toward the nasty.  Still, I learned long ago not to take those often anonymous lawyer comments about judges very seriously.  Twenty-odd years ago, I had a trial with a judge in Los Angeles named Sherrill Luke, who had a scathing "record" regarding his so-called judicial temperament.  Yet, Judge Luke remains one of the most thoughtful judges I have ever appeared before, and my opposing counsel and I each went on the record after the trial--this was before the Internet--to say so (For those keeping score, it was a case I won on the defense so I think it significant the losing side's lawyer agreed with me about Judge Luke as well).  The lawyers who came in after us for another trial reported back to me the same conclusion.  Now perhaps the lawyer comments changed Judge Luke, but I never ran across anyone thereafter who verified Judge Luke ever acted that way.

Oh, and Judge Luke was an African-American (I think he is now deceased).  This is why I find the attacks against Sotomayor to be taken with the proverbial grain of salt.  Puerto Rican woman in federal court cases with silk stocking lawyers more often in front of her?  Well, you can guess that result when she catches them with some legal argument that strikes other practitioners as phony.  And really, did any of those folks not go in front of federal judges before?  Federal judges in Los Angeles alone had scathing personalities on the bench for decades--Manny Real anyone (though my own experiences with Judge Real were fairly routine and I never fell on his bad side, luckily)? 

I think the thing that is probably bothering a lot of trial lawyers across the nation at this point about Kavanaugh is his overall political hack nature, which was on display for the nation at the hearing on Thursday.  When one then reads some of Kavanaugh's nasty and ideological dissenting opinions, one senses the same hackery.  And we know all about Kavanaugh's hackery in the Starr Investigation of Clinton, and his hackery while serving the Bush II administration regarding torture, and other matters.

I know if I was on the bench, no matter how much I hate Wal-Mart for its labor practices, I would be doing my damnedest to ensure Wal-Mart had its due process rights respected, and in the given case in which I presided, the benefit of the same assumptions of either innocence or righteousness that any other litigant would be given.  The thing we are at least supposed to be trained to do as lawyers is to step outside ourselves, see other perspectives, and understand how language can be inarticulate but correct, or very articulate yet be misleading--in other words, to hear and observe, and to recognize that truth sometimes is located in places we would not expect, or even expect to like.  I learned that long ago when I started representing Exxon during the mid 1980s through early 1990s.  I learned a lot about Exxon's products and services, and communicated fairly often with its claims representatives, who worked directly for Exxon because Exxon had high Self-Insured Retentions (SIRs), and so unless it was over $10 million, the SIR limit, it was all Exxon's money in defending itself and there was no insurance company to deal with.  I remember once, in a case, I said, "Guys, fight his lawsuit!  We can win it!  You are right and the plaintiff is wrong!"  The lead claims rep replied, "Mitch, juries hate us"--this was a year after the Valdez "incident"--"and we can't take the chance. We appreciate your support, but...Settle it."  I found the claims reps almost to a person consistently humane, fair, and firmly rooted in reality that had a moral basis for the decisions they made.  Fancy that.  Oh, and right now, some of my clients have been of people who, and businesses that, would surprise most people who read my political comments.  But I define Truth in the particular less than the abstract, because we must always remember, especially in a judicial setting, our most dire "enemy" may be right in the instance that brings the person or company there, and that "enemy" deserves both respect and be found to be correct if the facts and circumstances otherwise move us there.  The integrity of precedent, the integrity of consistency, and the integrity of a process that may change precedent or consistency if facts or circumstances are different, demand a fealty that must rise above our own political philosophies and proclivities.*

In the mid-1990s, I was once invited to sit at a table at a lawyers' function as the late CA Supreme Court Justice Stanley Mosk.  A woman at the table, the wife of a lawyer, asked how he remained even handed after all the years he had been on the bench and knowing he was a political liberal.  Mosk struggled for words, and finally said, "I struggle."  He then asked the table of lawyers, "How does one continue to maintain neutrality in any practical sense?" While I sensed he meant this rhetorically, I asked if I could offer a reply to the question.  I then replied, "Whenever we are ready to make a decision as a judge, I think we should turn around and ask, 'If I am the losing side's lawyer, what would I make of the reasoning for my decision?  Does it have the integrity of being reasonable and consistent with good sense and overall law?'"  Mosk sat back and smiled.  He then hit the table with his hand, and said that was the best explanation for being neutral he ever heard.  Tom Umberg was at the table, who was a former Assistant Attorney General and at that time a local political figure I knew.  Umberg had been the one who invited me to sit down.  He sat back too and I felt he felt I was a bit too bold to have the temerity to reply to a question Justice Mosk meant to be rhetorical.  Mosk, though, loved it, and we talked a bit into the night.  It never got me anywhere of course, as I never learned to be a player, and Mosk was way too high in the elite sky to ever deign to speak to a lowly lawyer like me again.  Sometimes I have thought over the years I am too much of a maverick mind to work in a judiciary that so often, these days, rewards political fealty and increasingly identity-politics status--though I am the first to say, if a minority or woman appears mediocre, "Why should only white male judges get to be mediocre?"  To me, the beauty of affirmative action is it gives everyone a true chance.  The belief in "meritocracy" is overrated, and sometimes there are true diamonds in the rough.  Sotomayor benefited from affirmative action, as did Clarence Thomas.  But they have each become people to reckon with as Justices of the Supreme Court and their backgrounds and philosophies are at least as important as Justices Butler or Fuller or any number of justices over the decades and now centuries.  And Sotomayor has impressed me with her opinions in a way I was less sure about before she ascended to the Supreme Court.  I thought she would probably be a female, Puerto Rican Breyer, and I sense she is moving into the realm of my hero of the past 50 years as far as Justices go, David Souter.

As I say, that is how life's experience works.  It is messy, it is a continual trial to recognize others' points of views in any judicial setting.  With regard to Exxon, I remain of the political view that oil and gas should be even more regulated like any other utility upon which our society relies (whether individuals or businesses), and would still support nationalization of oil companies.  But that should not and does not matter in a judicial setting.  When Exxon comes to the court, it deserves respect and it deserves fairness.  Same with Wal-Mart.  The 20th Century philosopher John Rawls was right.  Justice is procedural, and Justice is best defined through a lens of fairness, or what is fair. My only additional sub-category about this is that justice sometimes has a long arc, and sometimes can be rough.

This has been especially true when we consider the plight of and oppression of minorities in our nation, of women in our nation most definitely.   At some point, there is a political response that creeps into judicial ones, such as with Brown v. Bd. of Education, where the Supreme Court tired of legislative inaction to overturn segregation, which the Court members recognized had wrongly been given sanction in the Courts of the 1890s.  I have seen Brown more as a restoration of what many framers of the post-Civil War constitutional amendments had sought, and the arguments that animated the Fourteenth Amendment continued in various guises. I am impatient with arguments which strike me as overly theoretical when I hear or read discussions about "substantive" v. "procedural" due process, since both types of due process often overlap when evaluating cases that touch either, particularly in "right to privacy" cases. I also tire of those who live in a world where they worry about whether "liberty" is "positive" or "negative."

Anyway, what I find infuriating about Kavanaugh is he acts like the same political bomb thrower he was when working for Ken Starr and GW Bush, and in his Thursday outburst posing as testimony, he showed that tendency again.

Oh well.  Let's see what happens this coming week.

* I use the word "integrity" from my close reading of the late legal philosopher, Ronald Dworkin.

21st Century Elite Political Couple Fail

This is a public policy public service announcement. It is not about judicial views regarding Roe v. Wade (that is here). The purpose of this post is to expose and push aside something which should not be a priority in public policy disputes in our nation, considering the other more major issues we face--and to realize how the elite corporate media reflects corporate elite opinion, and diverts us from arguing over matters of far more substance. So here we go...

Ugh. These elite Beltway type marriages....So cute, people say. For me, I find them indicative of elite intellectual corruption in our society and why the corporate media is such a poisonous, diverting well of misplaced priorities and misinformation.  Sort of like Mary Matalin and James Carville, who laugh at those who they obviously secretly call "rubes," who they divert with culture war issues, all the way to their joint banking account. This time, it is Richard Brookhiser and his so-called liberal spouse. And the thing they have a problem with is the dispute over legalizing or criminalizing the act of abortion.

Brookshier, who I find personally least offensive among many right wing "intellectuals," needs the following questions put to him on his abortion issue stance: 

'So, Rich, why, in a world filled with so much human suffering, and suffering of sentient, walking around or caged animals we consume, do you have such a top-level priority for the protection of a fetus?"

When he is done dancing with that one, and denying it is a "top level priority," then a follow up: "Isn't abortion a top-level priority for you because you think the fetus has veto power over the rights of the woman, in which the fetus is growing, once that fetus hits zygote or just beyond?"

Whether he answers "No" or "Yes," it doesn't matter, as we then we ask: "You're the type of guy who thinks regulating a business is oppressive. But here, when we are dealing with something inside someone's--a woman's--body, you are all for big, intrusive government? Right? So, it's a top-level priority for you, right?"

At this point, he immediately tells us it is a human life, and so no different than murder laws. So, we ask:

"Why, though, interfere with a woman's right to decide what to do with her body when we consider how oppressive these laws become for women when actually enforced? Come on, Rich, you know how these laws played out in places like Romania? In Ireland? In late 19th Century and up through mid-20th Century America? My understanding of your business libertarian positions is we should balance cause and effect in enacting public policies, and avoid people feeling oppressed even by laws with good intentions...." 

"In other words, Rich, do you think 'The Handmaid's Tale' is simply so much propaganda or is it based upon at least some historical evidence of societal oppression of women?"

At some point, he will fall into the trap that says, "Well, the woman should have thought about the consequences before she got pregnant." 

This is a trap for him for two reasons: It assumes no coercion or rape, so his comment can't deal with those circumstances. But even if the sex was consensual, he would now be speaking more in a language of Pregnancy as a Punishment, not anything really about "pro-life."

And then, the easy hit: "So, you're good with the death penalty, drones, war, giving police deference when they are shooting people, etc.. You claim to be a believer in Western Monotheism, Thou Shalt Not Kill...but, in your own, real world, there are all sorts of exceptions not written into the Divine admonishment, meaning, for you, 'It's complicated.' So why does your concern for a fetus merit a general description of your political position as "pro-life?"

And finally, the rhetorical jab: "So you think abortion is so important it merits you having a general description of yourself as 'pro-life,' which means it is, for you, a public policy priority of the first order?"

Let Old Richie deal with these questions for awhile, and see how he then deals with his buddies at National Review....If he is still pushing his fetus cult/misplaced priorities position, well, his wife may finally realize her husband's priorities on public policy involve the suppression of the rights of women. And she may realize, too, when she looks in the mirror, the reason the two of them find time to argue, poorly, it seems, about abortion as a matter of public policy, and somehow think this dispute means they have "drastically different" political views, is neither have noticed neither give a damn about the plight of workers or the poor, don't care about the military-industrial complex or the effects of the American Empire at home and around the world, and are positively blasé about the effects of anthropomorphic climate change. 

Brookshier's marriage is merely the Clinton liberal v. the right wing religious zealot, perfect for corporate media fodder.   Ladies and gentlemen, I give you your 21st Century American Elite.

And we wonder why Americans are, as workers and the poor, falling further and further behind the wealthy and corporate power existing in our nation...

Baby Boomer White Males Facing the Music

Some were surprised at my initial reaction on FB to the accusation against Kavanaugh was that I was concerned, and the word "concerned" was the word I used, we were going back to high school to defeat political opponents. I knew from the start what Kavanaugh was accused of was sexual assault. I knew too I was sympathetic to his accuser, and am still believing her more than Kavanaugh. However, I was trying to be consistent in being supportive of "liberal" jurisprudence that even some "conservatives" on the US Supreme Court have embraced regarding the cruelty of harsh and long sentencing of minors for near capital and capital criminal offenses they may commit. See this link on the topic.

I re-evaluated my position following some arguments on others' FB pages for the following reasons: (1) Kavanuagh does not have entitlement to a lifetime appointment on the US Supreme Court, and not getting it is not anywhere like what minority and poor minors face with the type of acts for which Kavanaugh stands accused; and (2) it is time for white males of my age and Kavanaugh's age to acknowledge our shortcomings in a generational way, and accept that youthful acts of criminal misconduct should have had consequences then, but did not. As one commenter put it to me, whether that payback comes now is really not relevant. For me, what convinced me was not quite that, but when I recognized again a poor, black kid often would not, and still often does not, get the type of second chance Kavanaugh has had throughout his life.

Kavanaugh and the Republican right wing, for which he stands, has been consistent in wanting to prosecute and hold minors accountable for the rest of their lives when they commit acts of a violent, criminal nature. The lie behind their position was that they supported the cultural "winks and nods" which allowed young white men, including those in the "jock" world, to get away with what they did, combined with cultural norms of attacking the victim which kept young women from coming forward--until now. And the conservatives' lie behind the principle they espoused was further enhanced by the casual racism which led them to conclude black lives and brown lives did NOT matter--hence, the new movement to say black lives DO matter. As I said the other day, when changing my view, there is an intersection here of racism and sexism that needs to be acknowledged.

Kavanaugh, too, was not a judge who agreed with the recent Supreme Court humane precedent on the subject, and, ironically, he would join the conservative minority on the Court in pushing to reinstate life without parole for capital crimes committed by minors, if I correctly understand Kavanaugh's judicial philosophies. Maybe conservatives should be the ones to start proclaiming what liberal jurisprudence has accepted, but if they do, and I just saw a Jonah Goldberg op-ed this morning making that case, it will be to simply defend the moment, which ends up being another defense of white privilege. Regardless of whether Kavanaugh squeaks through, they will later jettison the principle Jonah Goldberg espoused this morning about teen brains, and back to their usual ways of seeing the issue, particularly when the teen looks like Treyvon Martin. 

I still feel we who opposed Kavanaugh's nomination from the start may also be accused of some hypocrisy in this moment. However, when I consider the many facts and circumstances surrounding this moment in time, this accusation, if enough Senators believe Ms. Ford, should properly sink Kavanaugh's nomination as a Justice of the US Supreme Court. 

I discussed my changing my mind with my daughter the other night, and wondered what she thought. She saw immediately what I did not in my initial position, but she was not quite aware of the liberal jurisprudential issue about the harsh sentencing rules many states had enacted regarding minors committing crimes. When I noted that, she said she did have some concern about pushing too hard on this, but then came back with her own experience in high school (class of 2016). She said she feels high school football guys still get away with a lot of actions that would otherwise be considered criminal. We both realized then our society still has a long way to go. I then said I agreed that maybe making Kavanaugh a poster boy to say "Enough!" is the kind of rough karmic justice we need to face the music in terms of male-female relations, too. She tried to tell me I'm not so bad, but I said, I think we white guys of my Baby Boomer years are still complicit. I did not say any more, but what I mean by that is my own initial reaction missed the perspectives I had to read and absorb.

Peter Thiel creates fascist-inspired conspiracy theory to avoid reality

Peter Thiel is a perfect example of what Walter says to Donny in The Big Lebowski, which is "Donny, you're out of your element." Thiel believes higher education has "brainwashed" younger engineers, scientists, and math oriented majors who work in Silicon Valley. He blames it on what he would not like to call a liberal-higher education conspiracy, but his words belie that denial. He is saying, whether he likes it or not, there is a conspiracy among the educated elite in higher education to mislead the people he sees working in Silicon Valley. 

Sorry, Pete. There is a perfectly good reason why engineers in Silicon Valley moved from a moderate Republican-libertarian stance to a more liberal-left stance, and that reason is based upon two trends Thiel would never want to admit...because his worldview largely crashes down when those two trends are considered and recognized:

1. The Goldwater-Reagan-Gingrich-Trump right wing attack on higher education in general, and then the attack on science and engineering itself, beginning in the 1990s. In the 1960s, many engineering, science, and math majors were hostile to the student movement, supportive of the Vietnam War, and generally voted Republican, including for people like Goldwater and Reagan because the two political leaders had to be more stealth when stoking anti-science beliefs--for it was necessary to push science and math against the Communist ideology dominated Russians. Indeed, even in the early 1980s, when Gingrich was a rising star in the Republican Party, Gingrich called for more science and math teaching to promote classic Cold War militarism (see the link to Gingrich above; and here is Gingrich, after he realized his days of power politics were waning, suddenly realizing that maybe we should do something about the effects of climate change--funny how that happens...). With the demise of the Soviet Union in 1991, however, the anti-higher education rhetoric no longer had to hide, and in fact needed to be promoted, as the Republican Party began to push hard against any idea of anthropomorphic climate change. This dovetailed with the Republican efforts to promote right wing, often Southern and Midwestern religious voters, which made it almost mandatory for Republican candidates to show they either rejected or had problems with basic evolutionary biology, and nearly anything related to science in general. The Republicans' efforts to appeal to those left behind in the global economy the Republican politicians largely ended up supporting and promoting (to please corporate donors) frustrated the Democratic Party's New Deal contingent as those of us in that latter contingent saw the rise of once "moderate Republicans" dominating the thinking of the Democratic Party, i.e the rise of Clinton Democrats. But back to the Republicans' descent into anti-intellectualism: If one goes back and reads or hears the Republican Party candidates' rhetoric starting in the mid to late 1990s, that rhetoric began to call scientists "liberal" and eventually "leftist" for positing anthropomorphic reasons for climate change, which made the highly educated teachers and students in the engineering, science, and math departments blanch with shock and then derision against Republicans in general. To use an oft made quote in its proper place for once, many of these engineers, scientists, and mathematics majors began saying, "I didn't leave the Republican Party, the Party left me."

2. The high cost of education starting in the 1990s made more and more younger people aware of societal needs, societal costs, and the problem and burdens that arise when putting social costs on individuals. This, combined with the hostility of the Republicans to "education" and "science," was the final push for younger engineers, scientists, and math majors to go "liberal-left." Some are still "libertarians," but even then, they are still on board with scientific reasoning regarding climate change and evolution, tend to be atheists, or strong agnostics, and are against the Empire Goldwater, Reagan, Gingrich loved. They reluctantly vote Republican, and often don't vote for major party candidates in November elections because they have a hard time voting for nearly any Democrats, even when Clinton-Obama Democrats reach out to them with charter school/anti-public school rhetoric, high tech support, lessening regulations during the derivatives land-go-go years, etc. Those who were libertarian who voted for Trump were hopeful when Trump talked a good game against the Empire at certain points in the 2015-2016 campaign for the presidency, but have grown disappointed in Trump for having shown no fealty to that rhetoric in any way other than with destructive, erratic behavior in office.

Perhaps Thiel needs to speak to a libertarian such as David Brin, who would largely agree with what I have just written. Brin gives a pass to Reagan and Goldwater I refuse to do, however, but taking Thiel back to reality is, I suppose, a step-by-step process. Brin also recognizes there is an anti-science left, which falls in with the right against vaccines and even fluoridation, but is more often the home of most anti-GMO fervor (I myself am skeptical about GMOs, but only on the basis that true, detailed over time epidemiological studies are relatively scant, and I wonder about why scientists in other nations than ours share my skepticism. Unlike those who are loudly anti-GMO, I respect the work of Pam Ronald at UC Davis, for example, and find myself blanching at various anti-GMO beliefs and "analyses," though food politics critic Michael Pollan is someone I respect, too.). 

But bottom line, Pete: It's not "brainwashing" which has turned engineering, science, and math departments, and their incoming students, more "liberal" and even "left." To believe that, Pete, you are only insulting these very highly educated people who are, for the most part, decent people, too. No one group has a monopoly on ethics, politics, or kindness/decency, but I would say that group of people Thiel attacks, including the libertarians among them, are mentally healthier than some other sociological defined groups who make up Traitor Trump's base. In Thiel-world, Thiel has to sit with some pretty dumb, addled characters. Yet, Thiel appears to never stop to ask himself, "Maybe it's me who's missing something? Anything?" Pete, my advice, again, is: Call up David Brin and ask him to lunch. He can help you. 

Me? I'll just end up calling you an overrated, rich jerk who proves my larger sociological point that rich people have overwhelming power to unduly influence the discourse on corporate media, and promote a propaganda that is undermining our nation, a nation that, on issue after issue, consists of a majority who believe in what Bernie Sanders says about funding public education tuition free, $15 an hour minimum wage, raising taxes on rich people and corporations, and Medicare/Medicaid for All, just for starters. Let me put it to you in more harsh terms, since most people around you are afraid to do so: Pete, I am so much more knowledgeable than you about politics, political history, and literature, for example, but it is you who gets to expound in corporate media journals and television, well beyond your technical and business expertise, to millions simply because you have amassed a boatload of money. For me, I would like to put your beloved sociopath Ayn Rand's Atlas Shrugged to a test. Let's put you and all your rich friends, even the ones who agree more with me than you would--for we really want to test the Ayn Rand theory here--into a spaceship, send you all to Mars and say, "Here! Create some jobs, 'job-creators'!" And then, you know what happens back here on earth when all of you are off the planet--and I mean, all, including the good CEOs and executives of the 1% and their trust fund friends? Well, the janitors still show up in the buildings across America, including places like Amgen and other Big Pharma places, and open the doors. The workers come filing in over the next few hours of the morning, and work gets done. Eventually, people realize they need some management, so people volunteer to take the jobs, but for 1/10,000th of the money you greedy, overrated jerks get paid, and life goes on, research goes on, arguments over policy go on, etc. It is the very opposite of the Ayn Rand sociopathic ideology. So yeah, better call David, and not me.

Tangled webs and power politics

This is a very thoughtful article in the New York Review of Books from Tamsin Shaw, which takes us through the Snowden saga from its beginnings to the present. It concerns Snowden, Greenwald, Assange, and others in the orbit. It shows these people needed a course of left and right politics of the 1930s. They fell into the trap of American Stalinists and America Firsters who were so angry with their own nation, the USA, that they decided to come under the wing of the Soviet Union and Nazi Germany. My theory, which I never had a chance to develop in a book--owing to my not being a professor, and life and medical illnesses getting in the way--is, in the 1930s, there were a significant number of people in elite positions throughout American society who had lost faith in open government values (meaning "republican" and "democratic" with a small "r" and a small "d"), and felt it was so necessary to expose American hypocrisy they ended up deciding they must embrace, however tentatively, and only on a short-term basis, foreign dictators elsewhere as a bulwark against American power and corruption, both in domestic policies and foreign policies. This is what happened to Snowden, Assange and Greenwald, though, in fairness, this trio had to face a powerful American government that wanted to do at least as much as they did to Bradley now Chelsea Manning, and likely worse to Snowden and Assange. Still, the trio did not think through the way in which Russian or Chinese dictators may find them useful for their own imperial and dictatorial goals, and how to gain control over the trio. Laura Poitras, an acolyte of Greenwald and Assange, protested when quoted in Shaw's article that she does not think she was engaged in a "conspiracy" because each of the participants never really knew everything any other person in the group knew. Perhaps Ms. Portias should study the law of conspiracy while she is studying the history of America in the 1930s.

My general, though perhaps not specific, sympathies remain, however, with Snowden, Assange, Greenwald, and Portias as individuals caught up in a world more powerful than each of them. Whether they are dupes or useful idiots is less important than recognizing how American national security policies drove these people out of their main goals for western societies, which, in that isolation, may be seen as fairly admirable and even reasonable. Snowden, Assange, Greenwald, and Portias are not "communists," "fascists" or any other label than what they give themselves. The problem they face is, by their actions, they ended up in a twilight zone which eventually pulled them onto a "side" they really did not want, either. Assange, for example, will never admit the obvious, which is his hostility against Obama and Clinton over their hypocrisies and, most specifically, their wanting Assange captured and even dead, led Assange to being used by Putin. Had Assange really been wanting to promote transparency and expose hypocrisies in the US government and its political duopoly, Assange could have gotten hold of RNC emails, and not just DNC emails. He could have said to Guccifer 2.0, I am not publishing the DNC hacked emails without the RNC hacked emails. The RNC emails would have been fun to read, wouldn't they? Greenwald, in his anti-anti-Trump position, ends up going on FoxNews promoting the theory FoxNews wants promoted, which is that Trump is not a compromised president. Snowden, meanwhile, is clearly in a loose fitting strait-jacket, and is conscious of it, even as he carefully chooses his words so as not to offend Putin, who Snowden knows could turn Snowden over to American authorities any time he chooses.

The answer, which Shaw assumes more than says, is we citizens of the US have to challenge what the late Gore Vidal often referred to as the National Security State here at home, which, if we are moderately successful in reforming, may allow Snowden and Greenwald to return home. Assange is sure a jerk and perhaps worse to women, but Assange too needs to be able to go home, if not to Australia, then perhaps here. It remains lost on too many flag wavers (including those who only began noticing the National Security State when it turned its sights on Donald Trump for what, to me, appear to be a reasonable concern about Trump's relationship with Russians, including Putin) that the true strength of US and Western nations' has always been our relative openness, notwithstanding domestic racism and other oppressions that continue to exist in our and other Western societies (flag wavers get nervous at this caveat, I know...:)). 

Shaw herself is also a bit credulous in her talk of American foreign and domestic policies as a series of "blunders," which shows she needs to read more Chomsky, who explains how, when one gets into the bowels of memoranda from American government advisers and officials, the idea of a "blunder" loses force, and the actions are recognized as more intentional, and based upon a worldview which may reasonably be seen as imperialistic, oppressive, and often racist. The conspiracy theory of American foreign policy and implications for domestic policy, for example, is overripe in Captain America: Winter Soldier, particularly in this scene, but the writers of that film are closer to a truth about American imperial policy than those saying our policies have been a series of mere "blunders." When Shaw is finished with some Chomsky reading, she may find illuminating the work of Christopher Simpson in Blowback: America's Recruitment of Nazis and its Effects on the Cold War and The Splendid Blond Beast: Money, Law, and Genocide in the Twentieth Century, and of David Talbot's more recent The Devil's Chessboard: Allen Dulles, the CIA, and the Rise of America's Secret Government, for example. Talbot, however, has very recently and sadly fallen into the same intellectual trap as Glenn Greenwald, i.e., becoming an anti-anti-Trumpist. Oh well. Even those who know History sometimes fall into the trap of "the enemy of my enemy is my friend...." Again, with Snowden and Assange, by the nature of their acts to provide information to the American and Western oriented peoples, they had to run from American police and military authorities, and ended up imprisoned or at least compromised by those who do not mean to promote openness and transparency in the least.

This is why we as citizens should push for more openness in our society, and an acceptance of what David Brin speaks of when he promotes the idea, first proposed by a Canadian technology researcher, of"sousveillance," which essentially means watching the watchers. As I have long said, secrecy is overrated (see Daniel Patrick Moynihan's book, Secrecy) and most often misused and abused (see the late ACLU lawyer, Frank Donner's Age of Surveillance, for starters). Where a Cold Warrior, such as Moynihan, and a left civil libertarian, such as Donner, agreed is we need honest security analyses and a strengthening of openness as a legally protected and promoted value. Moynihan also eventually began to realize, as his own life flame burned low, that maybe our nation needs to stop bombing people, meddling in other nations' affairs--often and mostly to the detriment of people in those other nations--and maybe stop training dictators to kill people around the globe. Yes, Senator Moynihan, that would definitely help, as the excuse for secrecy at home is lessened when we stop acting as one of the world's corrupt and murderous policeman.

In Defense of Youthful Socialists

It is not surprising the NY Times decided to cite one of my main avatars, Michael Harrington, in a way that puts a negative spotlight on the young people who have joined the Democratic Socialists of America (DSA) and are making in-roads in the Democratic Party. Maurice Isserman tries to avoid that, but the tone is fairly clear. What is ironic is Isserman was, in the early to mid 1980s, considered the "enfant terrible" for his pro-Communist Party member analysis of the Old Left, meaning he looked to the individuals and whether they were really spies, and if so, to what extent. He greatly upset the great historian, Theodore Draper, who wrote what many considered the definitive history of the American Communist Party, with the way Isserman expressed his own youthful enthusiasm (Isserman behaved in a manner many fellow historians thought was unbecoming of a scholar).*  When Isserman decided to write Harrington's biography, there were grumblings among the Dissent magazine set, including some of the founders of the magazine who were still alive at the time.  Harrington had, in the 1960s and 1970s, at least, remained the main non-Jew among the lapsed Jews at the magazine--fitting as Harrington called himself a lapsed Catholic, and Isserman had been part of a New Left that castigated Harrington and Dissent for their failure to make opposition to the War Against Vietnam the top priority for the American Left overall.  

I found Isserman's ensuing Harrington biography disappointing because he never really grappled with Harrington's work, and I think Harrington would have found the focus on Harrington's personal life to be a largely trivial exercise.  Harrington gets to argue with Ralph Nader near the end of my RFK-lives novel in what I consider the ultimate left v. left battle that could have occurred in a world where RFK had survived and became president.  My novel is also dedicated in part to Michael Harrington.  As someone who has read every book Harrington wrote, I think there still remains a book to be written about Harrington's political economy philosophy and policies.  Too bad I don't get to live in the timeline where I am a history or literature professor to write it.  

But in the end, the NY Times has added a wrinkle to I.F. Stone's famous line, You can always tell a conservative by the way they quote dead liberals--Stone's point being there are usually no intellectual right wingers to admire once one gets past Edmund Burke. Anyway, the Times' wrinkle is they now want readers to like a more tame Michael Harrington, and use that timid version of Harrington to criticize the young today. Harrington and the also late I.F. Stone (both men died in 1989) understood what Stone articulated in his May 19, 1969 essay In Defense of the Campus Rebels, which may be found online here, and in Stone's essay compilation, "Polemics and Prophecies, 1967-1970." In the essay, Stone criticized himself for being too focused on showing the lies of the Johnson administration and then new Nixon administration, to the exclusion of black poverty, general poverty, and the rights of students to question society.  Stone then wrote:

"This is what the campus rebels are trying to tell us, in the only way which seems to get attention.  I do not like much of what they are saying or doing.  I do not like to hear opponent shouted down, much less beaten up.  I do not like to hear any one group or class, including policemen, called pigs.  I do not think four-letter words are arguments.  I hate, hate, insolence and violence.  I see the as man's most ancient and enduring enemies and I hate to see them welling up on my side.  But I feel about the rebels as Erasmus did about Luther.  Erasmus helped inspire the Reformation but was repelled by the man who brought it to fruition.  He saw that Luther was  as intolerant and as dogmatic as the Church.  "From argument," as Erasmus saga it, "there would be a quick resort to the sword, and the whole world would be full of fury and madness."  Two centuries of religious wars without parallel for blood-lust were so to prove how right were his misgivings. But while Erasmus would dare not join Luther, he dared not oppose him, lest haply, as he confessed 'he might be fighting against the spirit of God. (Here Stone gave us a footnote, citing Froude's Life and Letters of Erasmus).  I feel that the New Left and the black revolutionaries, like Luther, are doing God's work, too, in refusing to no longer submit to evil, and challenging society to reform or crush them." (Parenthesis and emphasis added)**

This is precisely what I loved about Stone, and Harrington learned this as well by the late 1960s. Stone always understood youthful exuberance and idealism, which is why Stone supported the Popular Front with the Communists and Communist Party in the 1930s in order to promote FDR's New Deal, and push the New Deal to its limits.  Stone has been libeled as a Communist agent, which if you read the Wiki page in the section regarding espionage charges, I was the one who cited to the Robert Cottrell biography to attack that libel.  Harrington was always clear he was a democratic socialist, and was too young at the time of the early Cold War Red Scares, and never had to face what Stone and others did in the 1930s and 1940s. Harrington's collegial relationship with William F. Buckley did not hurt, either.  Harrington was always Buckley's favorite atheist and favorite socialist, more for Harrington's humble humanitarian sensibilities and Harrington's Catholic-inspired worldview than anything else. Years after Harrington's death from cancer, Buckley gave the ultimate compliment to Harrington, proving the Stone adage.  Buckley told Corey Robin, who has written extensively about political philosophy, that if he, Buckley, was a college student in the new millennium, his hero would be Michael Harrington and maybe even become a Communist (what Buckley implied is it would not be Edmund Burke or Russell Kirk).  Buckley, in his old age, had reached a point where he had begun to see the need for Harrington's humanitarian sensibilities, and Communism's original humanitarian sensibilities, as the right wing he cultivated had dissolved even then into madness and corruption.  This is not too surprising, as I recall Vidal recounting a conversation he had with British socialist Michel Foot, where both admitted to each other that they found solace in their old age reading Montaigne's essays.  

My take then on the young DSAers is they should keep agitating, keep mounting primary challenges to Democrats, and keep pushing the Overton Window regarding American politics about what is  and should be "possible." They will show who the true "moderates" are, which are liberals, particularly left-liberals, something many Americans used to believe in the 1930s through 1970s, where a President Eisenhower, as a Republican, could say he was for labor union promotion, 90% marginal top income tax rates, etc.  And if the DSAers want to shout down Trump administration officials in restaurants, I admit I stand with Stone and Harrington against that type of behavoir, but I am not going to de-legitimize them, or say they are not welcome or somehow destructive of our common goals.  If any generation is destroying our society and the planet, it is ours, and our parents' generation especially.  We should be far more humble in relationship to our children, and should be apologizing to them for our destructive behaviors and the political leaders we continue to choose. Our children are the species' future, and they will make mistakes along the way, but their enthusiasm and their demand to make a better future are what count more than anything else.  I will therefore continue to stand with them and support their enthusiasm and demands, even when they go beyond my own.

* My own take on Draper's magisterial "biography" of the American Communist Party is Draper overstated "fealty to the Soviet Union" as a defining characteristic of American Communist Party members--though not overstated as much as the young Isserman believed. My take is people in  the 1920s and 1930s became Communists often as labor union radicals or as persons deeply devoted to standing up for African-Americans and fighting racism and sexism in our society. Those motivations led them to compromises on "party lines," but these party line shifts did not define these people as either individuals or what continued to motivate their overall politics and activism.  That these folks were often tiresome to deal with, and were frustrating when refusing to recognize victories being achieved, and the party lines were cynical and sometimes outright disgusting is something I think anti-Cold War historians like Ellen Schreker and Maurice Isserman initially downplayed.  I remain, however, a devoted fan of the late Mr. Draper, as his other books and essays over the years are brilliantly researched and written.  Just for examples, Draper's book of essays, A Present of Things Past, and his insightful understanding of the Reagan Iran and Contra scandals (A Very Thin Line) are paradigm shifting reads.

** Stone, in 1970, also wrote an essay entitled Only the Bums Can Save the Country Now, using Nixon's line about campus radical "bums" to say that Nixon's move into Cambodia, after having led people to believe he would pursue peace in Vietnam, was a betrayal of monumental proportions.  See the essay at page 292 here.

Prison Reform is Connected to Many Important Public Policies and is Itself an Important Priority for Our Society

Jackie and I went to a Prison Strike rally late this afternoon in Albuquerque.  The rally is part of a relatively recent nationwide movement to directly confront the school to prison pipeline and prison-industrial complex. We have let terrible things fester and worsen for way too long, and we learned NM is very much in the forefront of private prisons and slave wages for prisoners. Below is the list of demands from the national movement's website (see earlier link), most of which should be part of both the Democratic Party and Libertarian Party platforms. 

While the Albuquerque rally had a relatively sparse crowd of about 100 people or so, the speakers were impassioned and powerful in explaining how harsh our prisons have become once again, and how slave wages and the profit motive in prisons have had the effect of imprisoning more and more poor people in a time when the most violent crime rates have gone down.  It dovetails with the analysis of the Ferguson, MO police department, and how they funded their operations through petty citations that add up and oppressed people like a modern Sheriff of Nottingham--with no Robin Hood in sight.  It helped us understand how Officer Darren Wilson, in Ferguson, MO, thought it was so important to get Michael Brown for jaywalking, which led Officer Wilson to continue to escalate the situation to a point where jaywalking ended up becoming a capital crime for Brown. Most times, the escalation falls short of that, but what ends up happening is poor people get indebted to the criminal justice system and end up inside, filing the pockets of private contractor prison firms.

My suggestion is we write to candidates and incumbents we like and help them see this as an important human rights issue which cuts across, and is connected to, economic inequality, exploitation of workers at the bottom runs of our society, electoral reform, and the need for increased and subsidized access to education across the board, both inside and outside of prison walls. This movement also clearly intersects with other criminal justice reforms which are badly needed. What I did not fully see before today is how one may connect dots to so many related issues such that this set of issues should become an important part of any set of policies that a civilized political party should endorse. 

Demands of the national movement:

1. Immediate improvements to the conditions of prisons and prison policies that recognize the humanity of imprisoned men and women.

2. An immediate end to prison slavery. All persons imprisoned in any place of detention under United States jurisdiction must be paid the prevailing wage in their state or territory for their labor. MJF Comment: This demand needs to be more specific and say there should be a right for prisoners to economically organize, and have the same rights as workers outside prison walls under the Fair Labor Standards Act of 1938.  See this article from The Nation from nearly nine years ago.  We also know many prisoners are doing a wonderful job in call centers, fighting forest fires, and the like. To rent them out for less than a dollar an hour or as little as 10-20 cents an hour--some states even  force prisoners to work for "free," which is the very definition of slavery--is simply a ridiculously exploitive and cruel act.  This Vox article shows us where to begin to analyze this phenomenon at various policy levels.  It is not enough to say, "Oh well, they are learning a skill."  To say they should not be allowed to earn a decent wage simply becomes an excuse for exploitation and ultimately again cruelty.  

3. The Prison Litigation Reform Act must be rescinded, allowing imprisoned humans a proper channel to address grievances and violations of their rights.

4. The Truth in Sentencing Act and the Sentencing Reform Act must be rescinded so that imprisoned humans have a possibility of rehabilitation and parole. No human shall be sentenced to Death by Incarceration or serve any sentence without the possibility of parole.

5. An immediate end to the racial overcharging, over-sentencing, and parole denials of Black and brown humans. 

6. Black humans shall no longer be denied parole because the victim of the crime was white, which is a particular problem in southern states. MJF Comment: The phrasing here is problematic to me, but I think guidelines can be put into place to alleviate the racial injustices here.

7. An immediate end to racist gang enhancement laws targeting Black and brown humans.

8. No imprisoned human shall be denied access to rehabilitation programs at their place of detention because of their label as a violent offender.

9. State prisons must be funded specifically to offer more rehabilitation services.

10. Pell grants must be reinstated in all US states and territories.

11. The voting rights of all confined citizens serving prison sentences, pretrial detainees, and so-called “ex-felons” must be counted. Representation is demanded. All voices count.

I wish more politicians had appeared today.  Only one Democratic Party candidate for a local State legislature seat appeared or spoke.  He had experience working with immigrants who fell afoul of laws, and he spoke with intelligence and passion.  Again, I think it is vital for us to start writing or emailing those we already like to elevate this issue.  I know Bernie Sanders was very vocal in his presidential run against private prisons, against slave wages for prisoners, and reinstating voting rights for those who served their time after felony convictions.  What I feel today is there is a way to talk about this systemically that, again, connects dots to other important issues so that this becomes part of a holistic sort of public policies.

Oh to cross examine Brett Kavanaugh...

If I was in the Senate...oh wait. I will never be in the Senate, and never had the chance as I was too out of step with my fellow Baby Boomers over the years...But wait, social media and blogging give me a little voice I used to reserve for the living room screaming at the television....

If I was in the Senate, I would take on the entire libertarian and right wing view of the Constitution in the following way. First, let's quote from James Madison in Federalist Paper no. 37, where he shows us "original intent" is really a flexible Constitution that is only understood through later interpretation arising from litigation, shall we? And to help navigate the language, I will highlight the two sentences that truly get to the point:

"The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated." (Emphasis added)

This is also why Oliver Wendell Holmes, Jr., in his book on the Common Law, recognized on page 1--page 1!!!--of that book, a truism of jurisprudence: "The life of the law has not been logic: it has been experience." Note the words "life" which can be translated into "living" and "law" being based at least as much on "experience" as "logic," or even more so "experience." This is directly keeping with how Madison was explaining to people in 1788 how to interpret this new Constitution. But back to Madison, he was saying, If God can't get it right for posterity when speaking through the Bible, how do we expect us humans making laws getting it right for posterity? 

As I said to Justice Scalia in a memorable moment in 1995 where I had the chance to speak with him, my problem with original intent is we somehow elevate the Founding Fathers to a status above God, and yet, we have really no idea how they felt about most issues that come before the Court as Scalia admitted to me in our first public discussion at a seminar I attended in 1995. Funny how he agreed with me privately, but never seemed to let on thereafter. That's because Scalia was a player, and I, alas, am not that good at being a player. :)

Now, let's move on to the idea that the Administrative State is something the dastardly Franklin Delano Roosevelt and his supposedly batty and crazy cousin Teddy before him, and their early friends like Carl Schurz, invented after the Civil War with that Interstate Commerce Commission, and then the alphabet soup agencies that followed (starting with the Food and Drug Administration) and flowered under the New Deal. I happened to catch, at lunchtime, Ben Sasse (R-Nebraska) eloquently attacking the administrative state, something Brett "Debt Man" Kavanaugh wholeheartedly agrees with Sasse about. These guys have been so poorly educated, but it is ultimately not their fault, as the people who taught them were goddamned ignorant about American history and jurisprudence, too (and I am also calling out Breyer and Ginsburg here; the only modern Supreme Court Justice who really understood what I am about to say is...oh irony!...David Souter). Oh well, here we go. Here is Federalist Paper no. 10, written by James Madison, before he later threw in his political lot a few years later with slaveholders against his Constitutional Convention buddy, Alexander Hamilton:

"So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government."

Ah, the last two sentences especially! It is pretty clear Madison is channeling to the future the New Deal. And it is why Holmes understood, too, the Constitution was not a document elevating corporate versions of capitalism, so beloved by his brethren in the era starting after the U.S. Civil War and extending into the early to mid New Deal years, and now making its roaring comeback 

I once had a memorable discussion with Eugene Volokh, noted libertarian oriented legal scholar at UCLA. He said Madison does not mean to sound like Ralph Nader in that paragraph quoted above. It can't mean that, he said. So, I replied, what does it mean then? And if you can't say, then why can't I use Scalia's textualism to make it so? In his defense, I honestly can't remember how he responded, because frankly, it was airy and superficial, rare things in Eugene. I had some early arguments over this on his blog The Volokh Conspiracy, before it moved to the august Washington Post, and if you find them, you can read the sputtering responses from the libertarian clan of professors there. They had nothing to show us precisely what Madison meant, as if Madison couldn't write a fairly clear, specific sentence. They got all Federalist Paper no. 37 squirrelly, which puts them into a box, doesn't it? I win either way. The U.S. Constitution is meant to be a living document, which means the New Deal is completely constitutional, or the New Deal means exactly what Madison meant in Federalist Paper no. 10. 

Let's also hear from the first truly revered Supreme Court Chief Justice John Marshall, shall we? How about M'Culloch v. Maryland in 1819? Here is what Marshall wrote for a unanimous Supreme Court, explaining why we should have a broad intent behind the words "necessary and proper:" 

"The subject is the execution of those great powers on which the welfare of a Nation essentially depends. It must have been the intention of those who gave these powers to insure, so far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances." (Emphasis added) 

And here he is again in Gibbons v. Ogden (1824) explaining why the Congress has the right to legislate on pretty much anything and everything subject only to the recall from the people in elections: 

"This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a "strict construction?" If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor if retained by himself, or which can enure solely to the benefit of the grantee, but is an investment of power for the general advantage, in the hands of agents selected for that purpose, which power can never be exercised by the people themselves, but must be placed in the hands of agents or lie dormant. We know of no rule for construing the extent of such powers other than is given by the language of the instrument which confers them, taken in connexion with the purposes for which they were conferred." (Emphasis added) 

And again later in the Gibbons opinion, here is Marshall again, this time warning us of the modern libertarian and right wing constitutionalists, who still can't get over the fact they lost in the ratification debate of 1788 and 1789, and lost again in the U.S. Civil War: 

"Powerful and ingenious minds, taking as postulates that the powers expressly granted to the government of the Union are to be contracted by construction into the narrowest possible compass and that the original powers of the States are retained if any possible construction will retain them may, by a course of well digested but refined and metaphysical reasoning founded on these premises, explain away the Constitution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived. In such a case, it is peculiarly necessary to recur to safe and fundamental principles to sustain those principles, and when sustained, to make them the tests of the arguments to be examined."

There are libertarians who are fond of quoting newspaper articles where Marshall and some right wing Southern plantation owner types, using pseudonyms, got into it over M'Culloch and think Marshall was backing off the reading I quote from Marshall, but that is wrongheaded for two reasons: First, there is the broad language again in Gibbons several years after these articles appeared. Second, the libertarian scholars, and even an august scholar, now departed, Gerald Gunther of the Stanford Law School, failed Comprehension 102 in not seeing how Marshall was being highly sarcastic and condescending to the other correspondents. Gunther's introduction in this edition of the articles is so wrong I was shocked at Gunther's lack of perspicacity when I decided to read through the rather dense early 19th Century language of the articles. It only heightens my love for Jane Austen's clarity as I read through such dense language. 

And run for the hills or stand and fight if you hear anyone talk of "enumerated powers" because they don't mean what Marshall understood in Gibbons and even Madison understood when he spoke of such things in Federalist Paper no. 10.* 

But there is something more which I only recently learned about. Kate Elizabeth Brown has written a very dense, but brilliant book which provides in detail the way in which Alexander Hamilton, while running the Treasury Department, formulated what became known as administrative law from the start of the U.S. government following the ratification of the U.S. Constitution. She also finds early Supreme Court and other lower court case law in the 1790s proving, as a practical matter, even the earliest Congressional legislation on excise taxes and other related economic legislation needed interpretation, and the creation of regulatory rules, in the administration of those earliest laws. What also came across to me was Hamilton's sense of posterity, in making sure not only his view but competing views, were aired before courts and the administrative tribunals in port-master contexts, and in navigating the concurrent and overlapping jurisdiction of federal and state authority, both judicially as well as in executive authority. I was deeply fascinated by the manner in which Hamilton, oblivious to modern proprieties and ethics, simply contacted judges to discuss potential matters that may come before the courts, set up test cases, and the like, but did so in a way that was transparent (most of the time) to all parties who had an interest in the dispute. It is extraordinary reading, if again very dense, due to the technical nature of the topic. But in the end, there is a powerful public policy lesson Professor Brown provides, which is to answer definitely and fully, the charge that the Administrative State only began because of those Commie New Dealers packing the Courts with Frankfurter and Jackson types who undermined the "real" Constitution. 

Kavanaugh must be confronted and if possible stopped. And he and his band of right wingers and libertarian law professors who back them more often than not must be confronted and challenged on nearly every aspect of their anti-Federalist and often Confederate jurisprudence. For when you listen to these folks, what you find is their citation to authority comes from the Gilded Age Supreme Courts, with their grafting of corporate capitalist doctrines into the Constitution, and their Confederate type demand for "limited" government when it comes to economic regulation. Yes, this is a continuing argument of Hamilton and Jefferson, as Claude Bowers wrote about (Bowers, born in Indiana, was highly influenced by the Southern historians' bias so prevalent in the mid-1920s, and, in his otherwise wonderful book, which still reads great, sided mostly with Jefferson). But this debate is one where Hamilton mostly won in fact, not necessarily theory, and it remains a dispute where we, who are true Federalists in its best, not elitist and player versions, must be vigilant. The irony of American history is Federal authority gave us as citizens more rights, particularly those who are "minorities." Our Founders, looking at us today, would tell us, don't argue as much over the past as simply choose better representatives for Congress and President, and have them choose better Supreme Court justices. Still, we need to make sure what we assume is true of the past is in fact true, and what we see, in this analysis here, is a lot of people sure missed the main point of the Founders (remember Jefferson was a soft Federalist and largely anti-Federalist from the start and was not at the Constitutional Convention, while Adams was not there, but certainly there in spirit in terms of the structure and language of the U.S. Constitution). The ultimate answer is the burden of posterity is on us, not the Founders. The burden is not on those in the past, but those in the present, in order to preserve the future.

*Yes, yes, I know how Madison retreated a bit from his language in Federalist Paper no. 10 in the center of the ratification debates in the last portion of Federalist Paper no. 41, but even there, the way such people today use the phrase "enumerated powers" is to wrongly read out the ability of the federal government to do anything with respect to New Deal type and social democratic type legislation. If one carefully reads Federalist Paper no. 41, Madison is saying the first paragraph in Article I, Section 8 means Congress has broad power to "raise money for the general welfare" in that first paragraph of the Article I, Section 8. When Madison goes on about the later "enumerated" subordinate clauses, he is talking about that in the context of Congress not destroying the "freedom of the press" as the one example he had just given. He is not taking back what he said in Federalist Paper no. 10 about regulation of various economic interests. 

Oh, and let's ensure we know the context in which Madison was writing Federalist Paper no. 41: Madison was becoming deeply concerned, in January 1788, that New York delegates were so anti-Constitution ratification that the white males over 21 with property were not going to ratify the Constitution. An anti-Federalist, likely attorney Robert Yates writing under the name Brutus (Madison, Hamilton, and a little of Jay wrote under the pseudonym, Publius), wrote in what is called Brutus #6 that the Constitution had no limits on congressional authority, which is not much different than Madison was arguing in Federalist 10, though Madison was of the view that the more factions, the less likely people such as Bernie Sanders (just using a modern name for the then angry farmers upset at creditors) would be able to get legislation through to upset the economic elite. Madison 41, published Jan 19, 1788, was an answer to Brutus 6, published in December 1787.  Madison is trying to limit what he earlier said, and near the end of 41, forgets what he wrote in 37 about the ambiguity of the Constitutional language. The irony of course is, when Madison is in Congress in 1789, and he is successfully pushing for removal of the word "expressly' from the 10th Amendment, to ensure the amendment is merely declaratory, Madison said, in a House speech (August 18, 1789): "...(I)t was impossible to confine the Government to the expertise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia." Madison again successfully had the word "expressly" removed from the 10th Amendment, which meant the amendment could not say when federal power ended and what was then reserved to the States or the People. Since then, various Supreme Court decisions, when mentioning the 10th Amendment, have declared it "declaratory" meaning it has no practical application for any delineation between federal and state powers.