Since I knew you were coming, I refuse to bake you a cake

The same sex marriage anti-discrimination v religious free exercise conundrum continues to vex courts. The more I think about this issue, the more I have found myself coming more forcefully down on the side of the consumer who seeks a service for a same sex wedding. It is not easy, however, as revealed in this latest decision from the Federal Court of Appeals, 8th Circuit, Telescope Media Group v. Lucero (Minnesota Department of Human Rights), No. 17-3352 (August 23, 2019).

In Telescope Media Group, a husband and wife team operates a for-profit corporation which provides video services to the general public. In providing these services, they work with customers to produce the videos. The business has stated its intention to start performing wedding videos to the public. The question was whether Minnesota's anti-discrimination laws, which state a for-profit business cannot discriminate on the basis of marriage or sexual orientation, applied to require the husband and wife's business, which is again a corporation, to produce both opposite and sex marriage videos on a non-discriminatory basis. The corporation, and the husband and wife personally, stated this went against the religious beliefs of the husband and wife, who adamantly oppose same-sex marriage. 

When the wedding cake case was decided, I admit I said if the facts of that case were the gay couple wanted the baker to write a message on the cake which explicitly celebrated the two males getting married, mentioning their names, for example, I would have a harder time telling that baker the law forced him to write that on the cake the baker had made. I had a hard time getting around analogies such as, forcing an African-American baker to write onto a cake, "Happy Birthday, Nathan Bedford Forest, hero of the KKK" or telling a Jewish baker to write on a cake, "Happy Birthday, Adolf Hitler!" At some point, though, you want to say, Ya know, maybe our anti-discrimination laws don't require businesses to take on all customers for all reasons and purposes. And maybe free speech for thee may oppress free speech for me--as the right to not speak about something is as important as the right to speak about something; sometimes even more so. And really, is two gays wanting to marry really hateful? It is two guys committing to each other in a loving, romantic way. Sometimes, we must rein in our analogies. 

The majority and dissenting opinions in the videographer corporation case are well worth the full read, as each shows how the two opinions evaluate and interpret the same case precedent. What I kept asking myself, as I read the majority opinion was, "So, if this couple operating their video making for-profit corporation wanted to put at the end of every video, 'This couple's marriage is consecrated in accordance with our Lord, Jesus Christ," would that be okay, too? If a Jewish, Buddhist, Sikh, Muslim, or atheist couple wanting to use their services objected, could the business legally say, "Love it or don't do business with us?" What would be the societal consequence of allowing this type of business to operate in this way? I can easily foresee Jewish, Buddhist, and especially Muslim and atheist couples having a much harder time finding a videographer around many parts of the nation, can't you? Lots of Christians in the US still talk about "Judeo-Christian heritage," but hardly any talk about "Judeo-Christian-Muslim heritage."

Nonetheless, I find my own argument not so easy to apply when the majority and dissent talk about a musician who plays weddings. Would a Jewish wedding musician guitarist, let's say the musician has incorporated his or her business, be forced to play at a wedding of two Nazis who will talk about how they found love by their mutual hatred for Jews? We may ask, Why would two Nazis wanting to get married want to hire a "Jew musician," but sometimes such folks hire "Jew doctors" or "Jew lawyers," don't they? Heck, I knew blatant racists in New Jersey who loved Motown music. We know anti-Semitism and racism, if not as often homophobia, works in mysterious and irrational ways, as one may reasonably call each of these prejudices irrational and, as the courts often say, "invidious."

The challenge is enforcing pluralism. When we enforce pluralism, we fall into the conundrum of forcing people who don't believe in pluralism to believe in pluralism. This slide show gives us a basic understanding of what I mean. However, what concerns me is this: If we don't enforce pluralism, we may find our society goes backward, as stated at pages 56-57 of the videograoher case's dissenting opinion, in terms of allowing discrimination to begin to thrive once again. What the cake baker case and this videographer case are showing us is what I have long worried about when trying to judicially carve out protections for homosexuality in a society only recently beginning to find what I can call enlightenment regarding the irrelevancy of same sex sexual conduct and opposite sex sexual conduct. What people do in their private lives in matters of sex should really be of nobody's concern. The question, however, becomes more public with a wedding, and, for awhile, I would side with libertarians saying, Get the government out of the marriage business so it is not entangled with individual people's religious views. But the baker case and this videographer case are not about the government entangling itself in religious philosophy in quite the same way. These cases are about a very secular idea that people who are not of a majority religion, people who are gay or lesbian, etc., have the same right to participate in society as those of the majority of people who are of a majority religion or are heterosexual--and the government enforcing that right against private businesses owned by people who oppose the minorities in those instances. The secular idea being enforced, again, is pluralism. 

I tend to blanch at most "isms" as I find profundity within my old, now departed lawyer boss' view that every great idea becomes wrong when a majority of people agree with it. This glib remark contained a profound truth, which is we only get to see the abuse of an otherwise good idea when the majority of people begin to act as if the idea is a bedrock truth. One may easily say, Ah, let this anti-homosexual couple, with their closely held corporation, do what they want. There must be plenty of other videographers the same sex couple can find. But are there many choices for a same sex couple in many parts of our nation? And what happens when this viewpoint the videography service couple wish to express through their business becomes more and more "popular" in the region or area where the couple operates their business? What then? Is this case allowing for a setting up of enclaves where homosexuals are entering essentially "sundown towns" where they are not generally welcome? If so, then anti-discrimination laws may be rendered hollow and the people who were supposed to be protected are betrayed.

On the other hand, I keep coming back to the musician who plays weddings generally. May the musician say, "I only play Christian weddings? I won't play for Jews, Muslims, etc. because I won't play their songs?" Somehow, I find that a more difficult situation to resolve than the videographers in this case, though I would not call this videographer case so easy, either.

Interestingly, the majority of the 8th Circuit Federal Court of Appeals left itself open to revisiting this case, because of the fact the case came before it as a motion to dismiss, which requires the Courts to view the complaint's allegations as automatically true as to the facts alleged. At page 9 of the majority opinion, the majority of the Court of Appeals stated:

The dissent reaches the opposite conclusion, but only by recasting or ignoring the allegations in the Larsens’ complaint,3 which at this stage we must accept as true.See Miller, 688 F.3d at 933 n.4. The complaint makes clear that the Larsens’ videos will not just be simple recordings, the product of planting a video camera at the end of the aisle and pressing record. Rather, they intend to shoot, assemble, and edit the videos with the goal of expressing their own views about the sanctity of marriage. Even if their customers have some say over the finished product, the complaint itself is clear that the Larsens retain ultimate editorial judgment and control. 

Footnote 3: The dissent is a moving target. At certain points, it seems to assume that the Larsens’ speech is protected, at least in some form. See post at 43; United States v. O’Brien, 391 U.S. 367, 376 (1968) (“[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First amendment freedoms.”). At others, the dissent suggests that the videos are not speech at all, primarily because the Larsens are telling someone else’s story as part of a for-profit service. See post at 48-49. The dissent’s scattershot approach may be due to the fact that neither of these theories (or any of its others) finds support in Supreme Court precedent or opinions of this court. 

The appellate court claims the complaint makes "clear that the Larsens retain ultimate editorial judgment and control." However, having dealt with a wedding videographer when The Wife and I married in 1987, and knowing how videographers work with wedding couples over the decades since, I don't recall videographers having any ultimate judgment and control over the content of a wedding couple's video. Most Jewish couples would not countenance a videographer editing out what the rabbi said if the couple wanted what the rabbi said included in the video. The videographer would not include something I objected to as the customer. For me, I can't wait to see the depositions of the husband and wife owners as the State's lawyers ask such questions about what they allege is their "ultimate" control over "content." This statement in the majority opinion formed a lynchpin as to why the majority Court of Appeals judges reached their decision. It is why the majority threw in footnote 3 to castigate and belittle the dissent. When I read the dissenting opinion, I concluded footnote 3 is almost insulting to the intelligence of the dissenting judge. In fact, the dissenting judge's reasoning was decidedly "not a moving target." For example, the dissenting opinion stated, at page 49:

Admittedly, the Larsens take great pains to portray themselves more like independent artists telling their own story than messengers acting on behalf of others. At oral argument, their counsel compared them to “Steven Spielberg, edit[ing] the film[s] to express messages” consistent with their personal and religious views. Oral Arg. at 0:00–1:05. But Steven Spielberg is not a public accommodation; he does not make his filmmaking services generally “available to the public.” Minn. Stat. § 363A.03 subdiv. 34. He is thus free to use his talents as he pleases without regard for laws like the MHRA. If the Larsens truly were artists speaking their own message, then TMG similarly would not qualify as a place of public accommodation and this entire lawsuit would be unnecessary.

The law regarding the procedure known as a motion to dismiss is, again, generally, a court must accept as true the factual allegations in a complaint. However, there are twilight zone areas even within that simple, straightforward legal proposition, especially if a court finds the fact averred is one which runs toward or to the absurd. To compare the videography corporation making videos for wedding couples to an independent film producer/director, who is making what is considered artistic personal expressions, is quite a stretch. The question, however, is that a sufficient stretch to reach the dissent's conclusion at this stage in the litigation? What bothered me about the majority opinion, after reading the dissent, was how the majority acknowledged, through footnote 3, they read the dissent. However, the majority ignored and refused to deal with what the dissent finally reaches, at page 50 of the dissent, which is his point about a hypothetical photography business deciding not to take photos of Muslim women in their hijabs or take photos of an interracial couple. The majority opinion did not expressly state they would draw any distinctions, hiding behind the motion to dismiss procedure and making it sound as if they may revisit the issue after discovery and a motion for summary judgment, for example.

Nonetheless, that musician hypothetical keeps coming back to me. I just don't know what to do about that one, and I find it harder to tell the musician what to play than telling this little corporation to just make the same sex marriage video, for goodness' sakes. What we are seeing in this particular moment in U.S. History is an argument that has emerged about whether pluralism is a societal good that should override (I won't say "trump" any longer for what I hope are obvious reasons) the "right" of people to oppose pluralism. And I realize we are perhaps drawing lines that are not so clear anymore, as the corporation's husband and wife owners admitted--yes, admitted!--in their complaint they would continue to serve gay and lesbian customers, just not prepare the videos for their weddings. At page 24, in the majority opinion, as the majority were rejecting the corporation's "freedom to associate" claim, even as the majority were upholding the "free exercise of religion" claim:

Indeed, the Larsens’ allegations all but doom their associational-freedom claim. The complaint stresses that the Larsens will “gladly work with all people— regardless of their . . . sexual orientation”—as long as the message of any video they are asked to make fits with their religious beliefs. The Larsens’ counsel reinforced this point at oral argument, explaining that they would have no problem making other types of videos for gay or lesbian customers. It is clear, then, that serving, speaking to, and otherwise associating with gay and lesbian customers is not the harm they seek to remedy. Their real objection is to the message of the videos themselves, which is just another way of saying that the MHRA violates their free- speech rights.

It sorta makes us wonder, is it really so important for this videographer corporation to not prepare a video for a same sex wedding compared to the importance of a gay or lesbian couple to participate in our society when they wish to marry? Is the videographer corporation's right to pursue its shareholder-owners' religious views sufficiently compelling to justify turning away a gay or lesbian couple, particularly in an area where the gay or lesbian couple may not find any business will videotape their wedding, even though state laws prohibit discrimination against them in general? Courts should look at the consequences of their decisions, and should ask, What is the purpose of anti-discrimination laws in the first place, and how does ruling against the state promote or harm that purpose? Yes, the majority opinion is careful to note the question, but I find the majority opinion is ultimately glib for not truly grappling with what I am saying here. The majority almost completely ignores the point made about a videographer who wants to include references to the Lord, Jesus Christ in every wedding video, something I believe will definitely come up in cross examination in the couple's depositions.*

I believe we will see the smarter courts grappling with the concept of pluralism, and may find themselves, if they have the integrity to be honest, determine the question of whether pluralism can be enforced with respect to beliefs that affect whether consumers have a right to fully participate in society. These courts may determine if they may honestly draw distinctions between, for example, wedding photographers and videographers on the one hand, and wedding musicians on the other. I wonder if courts will have to draw distinctions between content that is obscene (oh, that again!) and those which are personally insulting (Nazi cakes and Jewish bakers; harsh, snarky, sarcastic political statements) and those situations which concern a general refusal, such as this husband and wife owned videography corporation simply saying, "We will not perform our services at same sex weddings...at all." I have some doubt about whether the current crop of judges, particularly those President Trump and the Republican led Senate have placed on the bench, are ready for this type of discussion and request for fine distinctions. I wonder about their commitment to pluralism and anti-discrimination laws on behalf of truly and historically oppressed communities in our nation. I go on at length here because I did not really see that type of grappling in the long majority and dissenting opinions, though I think the dissent is much closer to the mark to what I have been discussing here. Sadly, I have little hope the US Supreme Court majority will modify or overturn the 8th Circuit Federal Court of Appeals. I think the majority of the Supreme Court justices, if they accept review of this case, will affirm the 8th Circuit Federal Court of Appeals.

In closing, let me say it as plainly as the late Yale Law School professor, Fred Rodell, would have said, Elections have consequences, folks. As I considered this majority opinion, and the initial reaction from David French (a noted "Never Trumper" who objects more to Trump's style than substance in many instances), in the right wing journal, the National Review, I began to fear for our gay, lesbian, and transgender, citizens, who may think they have equal rights to participate in our society, but may find doors increasingly closed to them, despite the laws they and others fought so hard to pass. 

* I could not help noting how the majority and dissenting opinions kept referring to the husband and wife by their personal names, and glossed over the fact that, while the husband and wife couple were also plaintiffs, the Minnesota Human Rights Department was challenging the videographer business' assertion to not provide services for same sex weddings, not the couple on an individual basis. The majority and dissenting opinions did find the husband and wife each had standing to sue, again, despite the fact the husband and wife were not the corporation, but only shareholders who owned stock in the corporation. I don't chide the majority and dissenting judges, however, because this is a consequence of the Hobby Lobby case, where the majority of the US Supreme Court Justices suddenly found a for-profit corporation had the same religious rights as an individual or even a not for profit church. Justice Alito's majority opinion was an exercise in cynicism to hold the Religious Freedom Restoration Act, in including corporations in the definitions section of the act, meant Congress was expressly and fully including for-profit corporations within the Act. Funny, I do not recall ever seeing a corporation sitting next to me in a religious institution's pew. Yes, I am being glib. However, it is patently ridiculous to believe a for-profit corporation selling goods and services to the general public practices a "religion." The reason we have human beings and not computers engage in jurisprudence is to avoid absurdities. Unfortunately, Alito's conclusion, which four other justices joined, was an absurd one with regard to basic corporate law, where the reason individuals set up corporations is to separate the owners of the stock from the entity being created, that is the corporation--including the avoidance of personal responsibility. Also, Alito knows damned well courts have long held corporations have no 5th Amendment against self-incrimination. That is bedrock law for as long as courts have also held corporations are "persons." Wheeler v. United States, 226 U.S. 478, 488, 489 (1913), Hale v. Henkel, 201 U.S. 43 (1906). Yes, an exception has sometimes arisen with regard to closely-held or one person corporations, but only to the extent the individual is too tied up with the company. But even then, with respect to the 5th Amendment, we are talking about a criminal prosecution against the individual. Here, Minnesota was telling the corporation it cannot discriminate when selling its products and services to the general public. The State's Human Rights Department was expressly saying to the husband and wife, We, the State, are not telling you what to do in your private life. However, you have chosen to incorporate and chosen to sell goods or services to the general public. Also, if one forms a corporation to avoid personal liability, the essence of a corporation, how does one suddenly insert one's own personal, private religious views into that for-profit corporation selling goods and services to the general public? I get it that Hobby Lobby, an international for-profit corporation, happened to be a relatively closely held corporation, meaning it had a relatively small number of shareholders and was a privately held corporation, not a publicly held one, such as McDonald's or Disney. But really, courts should not be shielding their eyes from what is obvious about Hobby Lobby. Hobby Lobby is selling products and services to the general public no different than McDonald's. Anyway, that is my beef with Alito and Co. and I guess the Justices were lucky I was not in the conference room when the Hobby Lobby case was being discussed. I would have brought in a corporation law text book and pounded it on the table after reading the first chapter to them. :)

Ease their pain: Cancel student debt

Ease their pain.  And yes, go the distance.

Jordan Weissmann continues to be obtuse about the issue of canceling student debt. Jordan wrote about this when he feigned ignorance as to what Jill Stein was talking about when comparing canceling student debt to quantitative easing for banks. I was one of those reminding Jordan then--not that he was listening--quantitative easing was how the banks dumped many student loans onto the US government. It was part of the Fed's $4 trillion giveaway to bankers and banks.

Anyway, Jordan is back and here are the two paragraphs he thinks his point becomes so compelling:

"By itself, student loan forgiveness is sort of an odd priority for the left. It would do an enormous amount of good for many financially burdened young adults, but a disproportionate share of the relief would go to upper-middle-class and wealthy families. Currently, about one-third of the debt is held by households in the top quarter of the nation’s income distribution."

"One reason for this is that people who go to college just generally tend to make more money than people who don’t. Another is that a lot of student debt is held by people with advanced degrees in fields like law and medicine who borrow enormously for school, but tend to make a nice living. Last time I ran the numbers, about 39 percent of all new student loan dollars were being taken out for graduate school. Granted, a chunk of that cash is being borrowed by future teachers and social workers. But a ton of it is funding those business and medical degrees. If Republicans stood up and said they were going to pass a $1.6 trillion tax cut exclusively for people who had already attended college or grad school, and that the biggest benefits were going to people who trained to be surgeons, democratic socialist types would probably think it was insane. And yet, that’s pretty much what universal student debt relief is—at least if you look at it in isolation."

First, Jordan had to update his article by noting Bernie's plan has a provision for public grad school programs to have regulatory oversight to keep down costs. I think that is especially needed with law schools.  However, let's get to Jordan's numbers, which I will assume are correct: First, he says one third of the debt goes to those households in the top quarter of income earners, which is anyone earning $80,000 or more. Not exactly buying that Mercedes at that level, are you?  Not exactly without any fear of economic instability, are you?  Anyway, Jordan's stat means, of course, two-thirds are those earning less. Even those in the top quarter are those who are part of the 80% of income earners living paycheck by paycheck. Second, 39% are being taken out for grad school these days is an interesting statistic. However, Jordan gives away much of his point by next saying its for teachers and social workers, people who do not make all that much money compared to doctors, lawyers and hedge fund managers with MBAs. 

Jordan suffers from Mayor Pete Syndrome.  Jordan worries about some money going to better off people--though Mayor Pete actually makes it sound like its going to Donald Trump's kids, which is cynically misleading. Both Jordan and Mayor Pete would have made these exact same arguments in 1935 against Social Security. Why should Thomas Lamont of the Morgan House be entitled to a Social Security check. He doesn't need a public pension.  Oh, and canceling student debt will likely be a shot of adrenalin for the US economy.  

Drive by commentary for July 2, 2019

* Thank goodness Andrew Yang is qualifying for the third and fourth presidential debates. Yang's UBI proposal is the most important public policy proposal since the 1880s with Henry George's Single Tax to stop profiteering off land. MSNBC executives must be gnashing teeth this morning. My love for Yang's proposal is it begins the conversation that we should separate income from work in an age where the robots are coming. Paul LaFargue saw it in his 1883 book, "The Right to be Lazy" and Bertrand Russell's 1932 essay, "In Praise of Idleness," speaks to at least part time work paid as full time on a productivity and societal basis. My criticism of Yang's proposal is Yang somehow refuses to give this UBI payment of $1,000 a month to a poor mom's with one or two children unless she gives up food stamps for her children (as Yang's UBI does not apply to anyone under 18). Worse, he wants to repeal the entire federal minimum wage and wants minimum wage laws pushed back to the states, thus repealing the Fair Labor Standards Act (FSLA) of 1938 on the federal minimum wage. Some states will then abolish their state minimum wage laws, which will make things even worse. I don't get why Yang thinks he can't have both UBI and give poor women food stamps for their children plus have a $15 minimum wage. They are complementary and frankly, the cost for food stamps in the US budget is minute.

* Elections have consequences. Say what you want about HRC, add this modification of a regulation that regulates and limits the number of hours a truck driver drives to the large list of regulatory changes that HRC would not have sought. I know, from litigation experience, what happens when truckers are tired. It ends in death. It ends in tragedy.

* Glad to see labor unions remembering the song that says in part "Solidarity forever." I support the Southern California grocery workers and did so in their strike sixteen years ago.

* The corporate media showed far more deference to the executive branch in 1971 and 1972 when Nixon and Kissinger, for re-election politics, suddenly sidestepped the administration's Strategic Arms Limitations Talks (SALT) negotiations, led by Gerard Smith, in giving the Soviets more weapons to keep and making what is the fateful promise to China on Taiwan's status. Nixon and Kissinger got their photo-opportunities with Brezhnev and Mao, and the old Red-baiting Cold Warrior, Nixon, was able to bask in the glow of what his administration's handlers called his administrative triumph.

Trump is clearly wanting to see that occur again in North Korea. However, if Trump gives in on sanctions with no permanent promise, or continues to stop the joint South Korean-US military exercises in such circumstances, I have a sense the corporate media will not be as deferential in this Internet age. This article shows how the leaks are legion, with Bolton losing influence to petty, short term politics--I am fine whenever Bolton loses influence, him being a warmonger---and Pompeo wanting to join in Trump's diplomatic photo-opportunistic triumph. This may explain why Trump pulled back on the Iran strike, as I have said he is really looking forward to his July 4th Nuremberg Rally and did not want a war taking up more headlines than himself.

lf Trump gets a short term, open ended "deal," with North Korea, the irony is it will be much worse than what Trump called the weak, open ended deal with the Iranians, as the Iranian leaders are far more in the range of leaders who abide by deals they enter into, while Kim is mercurial to say the least. Also, if Trump is truly as cynical and dumb as I take him for, he has a choice when top corporate media commentators make the comparison with Obama/Kerry's Iran deal: Either declare victory over the Iranians and go back to the very good deal Obama/Kerry had with the Iranians (with a minor change or two), or else let Bolton have his Middle East war to keep Bolton from bolting. That, of course, will come after the July 4th Nuremberg Rally, so one never knows which way a cynical showman such as Trump will go.

Marx's dictum that history repeats itself, first as tragedy, then as farce, applies to this situation when we compare the Nixon-Kissinger years to Trump-Bolton-Pompeo years.

Joe Biden opposed busing for the wrong reasons

Before a few months ago, I thought, maybe Joe Biden, then a 29-31 year old senator in the years of the mid- 1970s, had opposed busing because he was listening to the black nationalist-leftist critique of busing. The black nationalist-leftist critique of busing at that time was we, the larger white majority, were taking the best/brightest young African-Americans and removing them from their communities. The argument then said, Directly help the communities and, once the communities began to thrive, they would integrate because non-racist whites would move there, too. RFK's Bedford-Stuyvesant program, named after a particularly poor, African-American community in New York, was designed to help black people where they live with a set of New Deal type programs.  It would not require African-American children be bused, but it would put the "I'm not a racist, but I oppose busing" position to a test: "So, whitey, are you gonna use taxpayer dollars to rebuild these areas that were destroyed, in large part, by racist culture which led to policies giving white people incentives to move to the suburbs on publicly subsidized roads and into publicly subsidized (FHA loan) homes?"  

The answer is not known because RFK's Bed-Sty program was attempted after RFK's assassination, but without the leadership necessary to push this through, especially when Nixon and the Republicans were promoting the white backlash to the civil rights movement.

But reading this article from Politico.com in May 2019 and this latest article from NBC News about Biden and busing, one may find a hint of this RFK type of position from Biden, but it is feint and not really what Biden was doing and saying at the time. Worse, Biden's post-debate interview on MSNBC shocked me with anger, where Biden said he supported busing where the segregation was de jure, a Latin and legal phrase meaning, segregation based upon statutory and judicial made law, but he opposed busing for de facto reasons, which are essentially cultural and economic reasons, including realtors redlining against black home buyers and the type of cultural racism that rears its head in white people protesting against a black family moving in on the white folks' block. Sorry, Joe. That is the language of white racists who deny they are racists. In the 1960s, RFK had learned, particularly from his young attorney staff at the Justice Department, and later Peter Edelman and his wife Marian Wright Edelman, that de facto and de jure distinctions were false, and that one re-enforced the other, particularly with respect to housing patterns and educational opportunities. Richard Rothstein's recent book, The Color of Law: A Forgotten History of Our Government Segregated America, is well worth reading, especially if one is unfamiliar with this sordid history that affected northern and western regions of our nation more than the south, where de jure segregation was enforced precisely because poorer whites lived near poorer blacks.  It definitely and conclusively shows de jure and de facto segregation categories are not distinct, but overlap and again re-enforce each other. Rothstein shows redlining worked because most civil rights laws did not apply to housing, and how the civil rights legal movement was continually stymied when it came to overcoming racist housing patterns.

One other historical note I wish to add is, when RFK was debating Senator Eugene McCarthy (D-MN) in Orange County, CA, in the last two weeks or so before the CA presidential primary, the busing and housing topic came up, and Gene McCarthy gave the then standard liberal answer.  Yes, to open housing into the then-highly white and right wing Orange County.  RFK replied he was maybe not as interested in having the government just pay to move ten thousand black families into Orange County rather than helping people where they lived.  Over the years after RFK's assassination, even the likes of his hagiographer, Arthur Schlesinger, Jr., said "Bobby" was "demagogic" with that Orange County white audience (page 910 of Schlesinger's book).  However, Schlesinger immediately recognized the position was consistent with RFK's outlook over the years, though Schlesinger did not give context to what he meant, which was RFK having had continued confrontations with black nationalists in New York  and elsewhere, and how the Bed-Sty program was meant to work with those African-Americans who were in spirit if not full intent with the black nationalists saying save and develop their own neighborhoods with the type of government help for white farmers and white urban people in the 1930s New Deal era. We ought to also note McCarthy won in conservative, white Orange County in the CA primary, I believe because the whites there, even some of anti-war liberals, who remained a distinct minority then, knew RFK was very pro-civil rights, very pro-African-American, and had been one among the few US Senators who took up Marian Wright (later Marian Wright Edelman, having married one of RFK's top aides)'s challenge to view "black poverty" in the lower mid-west and south just a year before (see here and here).  And they were not going to have their taxes raised to help African-Americans in Compton or South Central Los Angeles.

Final personal promotion comment: In my novel about RFK surviving 1968, I deal with this divide in the African-American community over whether to move out African-Americans from communities or stay and redevelop them.  It is in the context of robust support for the Bed-Sty program, which morphs into the journalistically clever phrase, "Bed-Stay," and how Roger Wilkins, the young, African-American Solicitor General, decides to heed black nationalist and leftist arguments to oppose busing in the US Supreme Court and promote a subset of the New Deal type of policies that directly help African-Americans.  

Again, Joe Biden's stance on busing in the 1970s era strikes me as too coddling of white racism in his home state of Delaware and in the US Senate.  It is of a piece with his continuing to talk about "civility" when talking about the likes of the openly vile and racist senators from the Southern region of the United States in that era.  I am willing to hear more historical context and how much Biden had tried to do on a national basis what RFK was talking about.  But I sense Biden was already doing the type of neo-liberal dance that was defensive about the best 1930s and 1960s liberal values.  It is simply who he is, and, if Kamala Harris' dramatic rhetorical blows fatally hurt Joe's campaign, so be it.  Too bad it will be far more difficult for voices to be heard in corporate media showing how Harris is of the same type as Biden, and how, for her own advancement, she left behind the African-American community, including siding with bad police practices, for example.  Worse, once Biden departs from the race, we will see, hear, and read corporate media pundits demanding Bernie also step aside for being old, though Bernie's personal political history is consistently on the side of African-Americans, to take one example. The sad and frustrating truth remains: corporate media fears Bernie more than any other candidate running for president this cycle.

Thoughts on the two Democratic Party debates this week and corporate cable news' influence

I had the rare opportunity to watch most of the two Democratic Presidential debates this week while on a business trip.  After the second debate, I also had the opportunity to watch some of the cable news commentary at the vastly overrated among progressives' network, MSNBC, and was reminded of why I am so appalled at the corporate media propaganda system: First, how it trivializes running for president as if it was another episode of "The Voice." Second, how there is a diversion from issues and focus on the horse race aspect of any party's primary process. And third, how the corporate cable news commentators continue to use the words "far left" and "moderate" in a manner which obscures the true disconnect existing between the majority of American voters and those who hold power.  See here for a summary of the issues I raised last November, after the Democratic Party gains in the mid-terms, where consistent polling data show a majority of Americans support Bernie Sanders' platform, which should make the "far left" mainstream in any honest definition of the word "moderate."  Just imagine how you may feel about the candidates if you were told every single day that what Bernie Sanders proposes is the "moderate" or mainstream position.  It would change perceptions to demand change and demand an end to the disconnect of politicians who are not responsive to what the majority of Americans believe. It would expose, though, who owns the nation when we say something is not "politically feasible."

The corporate owned media's use of the word "moderate" is designed to promote frustration, resignation, and despair so the true owners of our nation can continue to reap the profits from the economy, bomb other people around the world who do not bend to our owners' will, and continue to risk killing off a lot of humans and other life on the planet, like some comic book villain.  The motto of the real owners of our nation is summarized in the 1980s vehicle bumper sticker,  He who dies with the most toys wins.  What corporate media commentators and the Republican Party political leadership feed people is hate and fear, which leads half the potential voters to despair and frustration, and ultimately resignation from voting, instead caring about nothing other than their own day-to-day survival.

Last fall, I talked about the Argument Among the Rational. That has begun in the Democratic Party presidential debates, though the argument, thus far, remains less clearly engaged, owing to the gross number of candidates, and, most frustratingly, the questions the MSNBC commentators were asking.  Why, for example, did the MSNBC questioners not ask Bernie Sanders to comment on UBI and talk about the pros and cons of Andrew Yang's proposal?  Where was a discussion of Marianne Williamson's idea for a Department of Peace, as it would have opened up the moral dimensions of foreign policy and most important, the operation of the American Empire in creating, not merely searching for, monsters abroad and within ourselves?* Why did the questions regarding Medicare for All stress the negatives, instead of a more objective form of questioning?  There was no question regarding the $15 minimum wage nor any that focused people's attentions on inequality in any systemic sourcing.  There was no question, and no discussion, of card check, the rights of people to form unions, and specific demands for where candidates stand on re-developing infrastructure.** There was one question about climate change that only allowed for a barely superficial discussion about the future of our planet, energy needs for humanity, and how to promote the economy while transitioning away from fossil fuels. And why not tell Cory Booker, Hey, your statement against BigPharma was nice, but Big Pharma has been a major booster of yours.  And nobody said, Nice speech against VP Biden, Senator Harris, but how do you answer critics of your law enforcement record in the context of Michelle Alexander's The New Jim Crow?*** Then, to put a not-too-fine-a-point on your bonnet, at the end of the second debate, the elitist corporate liberal commentator, Rachel Maddow, castigated the largely well-behaved audience for showing emotion instead of sitting like good little children in church.  

The goal of corporate media is to herd people into accepting narrow choices.  They will use words like "moderate" in a way to tell you can't have nice things other nations have, starting with Medicare for All, free public college tuition, and will rarely, if ever, disclose how military spending is nearly 60% of federal government discretionary spending, after Social Security, Medicare, and interest on the debt (See this clever, yet compelling, visual of US military spending over the past five or more decades; and here for how we spend more than the next seven nations on the planet combined.).  

I regret to say, if you wish to avoid corporate media manipulation, one should first turn off corporate media cable news.  Turn it off.  If we watch a debate on television, turn it off after the debate and don't listen to the vacuous, trivializing, manipulative commentaries.  These people are shills, hacks, and purveyors of propaganda.  They are right out of They Live.  They have no interest in informing people about issues as they do not believe the average American citizens are capable of deciding issues.  This Argument Among the Rational, however, is proceeding apace, largely through social media, which provides a wider variety of voices, good and bad, of course

If I am to offer my own "spin," it is this: Stand for and with your children. Stand for and with the planet.  If there is to be sacrifices made, let the economic sacrifices begin with those who have the most money and most power to withstand the sacrifice being called upon.  If there are sacrifices to be made, then we should be doing so with an idea of protecting our children's future and the future of life on the planet.  If there are positive goals to achieve, starting with ensuring everyone has full and complete access to health care, full and complete public college attendance without paying tuition, taking part in rebuilding our nation's infrastructure, erasing student debt to increase economic activity and power for those who have graduated from college, then let's elect people who truly stand for those things, not uttering vague, rhetorical noise or literally saying, "I'm for Medicare for All, but..."   We have an opportunity this time to vote for presidential candidates and those running for other offices who enunciate and articulate what the majority of American support. Corporate media commentators do not want you to believe that, and, those who profess to be "liberals" or even "progressive" in the corporate cable news media, invoke Trump to scare people away from voting for what they want.  

The high tide of The Argument Among the Rational is coming.  Let's be prepared.  Let's keep the argument going.  And if we have the opportunity to call out corporate media for its coverage and questions posed, then let's do that, too, especially when speaking with those who have questioned their fealty to Trump, for his broken promises apart from promoting white racism. Those are the swing voters of 2020.  And for God's sake, keep supporting voter registration efforts among The Young.  For our sake, too. 

* The reference to monsters is from John Quincy Adams' Fourth of July speech in 1821, when he was President James Monroe's Secretary of State. The more complete context is where he stated: "Wherever the standard of freedom and independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be. But she goes not abroad in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She will recommend the general cause, by the countenance of her voice, and the benignant sympathy of her example." This is what Bernie Sanders means when he said the other night, in the ten second and other limits set on candidates, he wants a foreign policy where diplomacy, not war, is the cornerstone.

** This is consistent with the way broadcast cable news has all day to talk about things, and literally almost never discusses workers striking across the land, or how it is only, and I mean only, Bernie Sanders who shows up in city after city to support labor rights. 

*** And the day after the debate, she attended a fancy fundraiser for her campaign, where a former Wells Fargo executive was host.  Senator Harris is proud she was bussed away from her family and community so she could personally enter the Big Club Where You and I Ain't In It.  

Falling into Van Wyck Brooks

Most Americans do not know orhave never heard of Van Wyck Brooks (the middle name is pronounced "Wike").  Among the most highly educated Humanities major Americans, one may hear the name and say, "I think I know the name...." but nothing else.  Brooks is someone I have read references to over the years, but only in a way which spoke of him as old-fashioned, out-of-date, and antiquarian to anyone in the late 20th Century through the present.  I knew of Brooks most particularly as someone who wrote about Emerson, Thoreau, and the other 19th Century New England intellectuals and writers. I had a soft spot for him, though, as he was one of the few literary critics of the early to mid-20th Century who liked and admired Sinclair Lewis' writings, seeing Randolph Bourne's insights put into novel form (see page 177 of Mark Schoerer's detestable in opinion, not research, biography of Sinclair Lewis).  For me,  Brooks' kindness to Lewis, unlike so many other critics of the era in which Lewis wrote, made Brooks at least a name worth remembering. But still, I never read Van Wyck Brooks' works.  

Until now.  And I must admit, I am smitten.  

Two weeks ago, I was in Downtown Books, a used bookstore in downtown Albuquerque, and found, quite by accident--which is the main reason to frequent used books or new books bookstores, by the way--a Brooks book entitled The Opinions of Oliver Allston, a book Brooks wrote in the early 1940s.  It is a book of observations in the creative guise of a fictitious person, "Oliver Allston," as if Brooks was writing a literary and intellectual biography of a real person, when it was just himself.  The book has an intellectualism suffused with airiness, meaning a literary feeling one is flying and gliding along, which is akin to W. Somerset Maugham's The Summing Up  (1938). The book is also vastly superior, and equally more creative, in style to the laborious third-person style Henry Adam employed for his Education autobiography.  One feels the mischievousness in between the lines and in the self-criticism in Brooks' work, particularly in the chapters on Socialism and Communism, which is all the more remarkable for the World War II period.  Brooks is saying, in effect, I have no fear of you Red-baiters, who were already on the rise as World War II was in progress. Brooks, in his late 50s, and beyond fear of economic deprivation, spoke plainly about the hope and positive aspects of socialism at least, while making clear he detested the loss of democratic values inherent in most Communist revolutions of the era. As one reads Brooks' novelistic book of letters, one marvels at Brooks' flights of fancy and insight. But, as with Maugham's wonderful book, when one tries to quote from the book, one is mostly at a loss for words. It is a strange feeling, but one I have found, in my old-ing years, more and more comforting.  All that is solid melts into air, I suppose, from a literary perspective.

Then, a week ago, I was in another used bookstore, Uncle Charlie's Covers, in Bernalillo, just north of us here in Rio Rancho, NM, and found a first edition of Brooks' New England: Indian summer: 1865-1915, published in 1940.  I admit to my surprise I am savoring it page by page.  Brooks' insights about the post-Civil War period are remarkable for his time, in recognizing the rise of corporate capitalism as a given, and recognizing how it was ripping through our cultural and economic life, especially for workers and those on farms and in rural areas. Sounds familiar, somehow....:) Brooks' insight as to the novels of that time, with their echoes from Emerson, Thoreau, Hawthorne, and the like, and the ideas and works of Margaret Fuller, Julia Ward Howe, Elizabeth Cady Stanton, and others, screams of a Marxist analysis, but without any of the cant and dogma so prevalent at that moment of 1940. Brooks even mischievously quotes Henry Adams' Education autobiography, where Henry speaks of Grandfather John Quincy Adams and said by "rights" the grandfather "should have been a Marxist..." (see Adams' chapter on Darwinism for this quotation) in the way JQA envisioned American infrastructural development, sharing of land and resources for common goods, and the like.  

Brooks' analysis of the 19th and early 20th Century writers who came from or came to New England speaks to a literary and intellectual history for our nation which needs reaffirmation in this time of oligarchies making us feel more divided than we are--even as one recognizes Brooks limited himself to the northeast, and did not write about the western writers, starting with Jack London, though, peeking at the index, I see multiple mentions of the California scholar who came east to Harvard, Josiah Royce. Nor did Brooks write about southern authors such as Faulkner, though, Faulkner does not arise until the 1920s, and, in this interview for the Encyclopedia Britannica, which NBC produced in 1955, Brooks speaks very highly of Faulkner.*  Brooks' insight is how the first intellectual and literary figures emanated from New England, not New York, not the South, not elsewhere.  And even today, it remains indisputable the American literary and intellectual grain begins in Boston--notwithstanding Jefferson and Madison in Virginia--as did American intellectual demands for morality in action, most acutely with the Abolitionist movement. Brooks is also wonderfully illuminative regarding Wendell Phillips, the only leading pre-Civil War Abolitionist who, after the Civil War, gravitated to fighting an even more losing battle against "wage slavery." Brooks also speaks at length, sprinkled throughout the book, of the rise of the now also forgotten and derided William Dean Howells, the Ohio transplant who came to Boston the way Islamic religious people come to Mecca, though Howells stayed for decades before decamping to New York City, which, Brooks rightly says, became the cultural center by the second decade of the 20th Century.  I am a major Howells fan, and find his trajectory of becoming more radical as he aged most remarkable. If one is not familiar with Howells' business novels, such as The Rise of Silas Lapham, A Hazard of New Fortunes (I seem to recall a Malcolm Gladwell article in the New Yorker where he shows the continued relevance of Hazard, but could not find this morning) or the radical Traveler from Alturia, one is missing an important set of insights into the history of our nation from any sociological or economic standpoint. And one basks in the presence of Brooks' great writing while one is enlightened.  Brooks is acutely aware of economic forces challenging New England's cultural dominance, particularly how the shipping industry declined in New England, and lost ground to New York and other ports by the end of the 19th Century.  Brooks sees the loss of the clothing industry to other parts of the nation as part of New England's relative decline. Brooks also notes, without any racism whatsoever, the rise of the melting pot European immigration into the New England area changed the "Yankee" (Scots-Irish) culture that defined an earlier 19th Century New England.

But I return to where I begin, which is why would Brooks be relevant today?  I think one place to begin to find Brooks' relevance is Brooks' demand for sentiment in the face of his knowledge and cynicism.  Another is Brooks' insights into highest parts of American culture from 100 to 150 years ago, and deeper, in his The Flowering of New England, which I suppose I will read next after I complete this one, which I am only in the first 20% through of a near 500 page book. His insights help us understand patterns in American life that continue even with a more ethnically diverse nation.  I read echoes of his analyses in modern journals such as New York Review of Books, for example, and among those who analyze the latest novels of new immigrants and those whose voices have been oppressed for so many centuries.  Lin Manuel Miranda would "get" Brooks and find Brooks' non-racism almost astonishing, and therefore hopeful, considering white Americans' deep racism in the era in which Brooks grew up and thrived. Brooks' insights regarding the literature America was producing as our nation developed into a global Empire has remarkable staying power.  This 1996 New York Times review of a Brooks biography, saved online remarkably, speaks to my view that Brooks is well worth reading.  

As I close this meandering post, I admit to finding it amusing that Brooks was born and grew up in, and married, in Plainfield, NJ, not far from where I grew up. Brooks was, however, smitten with New England from his attending Harvard, graduating in 1908, as we learn in Wikipedia.  I, too, was smitten with Harvard (still am), but I have not had any pretense of ever attending or teaching at Harvard--though, as I have written, the Son should have been accepted there. The Son was and remains certainly "Harvard material," at least for the undergraduate years, and one day, a professor there.  Overall, I am glad to have finally met Brooks, and learned I still have much to read in days when I find myself simultaneously wanting to remove myself from the noise of ignorance and rise of fascism and even Confederate style Nazism ascendant in our land--and as I wonder more and more, am I even "white" anymore?  I find comfort in reading about the people who inhabited the intellectual and literary life to which I wanted myself to aspire--even as I know Henry Adams, if he met me, would detest me for being of "Jewish" heritage.** I do, however, believe we are in a moment of great artistic ferment in terms of streaming television, and the rise in diverse voices who need to be heard.  I stand aside as an older semi-white male and marvel at the justly angry and creative youth, and wish them well. I hope some will find Brooks and ingest and incorporate him, as he is an ancestor worth knowing.

* The interview is worth a watch, for those daring enough to consider watching, as he speaks in the midst of the Red Scare and President Eisenhower, about statesmen behaving like "boys," which first he says is unprecedented, but then, steps back to say Teddy Roosevelt was a more boyish-boy than Ike.  Brooks harps on Jeffersonianism, and had that then-mistaken view of Andrew Jackson being a precursor of FDR, when of course FDR was more a Hamiltonian with a Jeffersonian sensibility--which Herbert Croly had called for in his 1909, The Promise of American Life.  Brooks speaks more highly of the then-New Critics in literary criticism than he should have, considering their disdain of Sinclair Lewis. However, Brooks gets the limits of Fitzgerald and Hemingway in a manner that would be considered revolutionary in our present days. Brooks sees Hemingway's violence as immature and Fitzgerald's adoration of the rich as woefully immature. Brooks declines to speculate much about what the future would bring, and therefore shows a wisdom beyond mine, for example.  It was a pleasurable, though highly sentimental and nostalgic, half hour to spend watching.  By the way, the interviewer, Hiram Haydn, was a famous editor of the early to mid 20th Century who edited many writers, from William Faulkner and William Styron to, believe it or not, Ayn Rand.

** See Edward N. Saveth's American Historians and European Immigration: 1875-1925, and particularly the devastating chapter on Henry Adams' crazed anti-Semitism; and I mean crazed, as he seems to use the word "Jew" to mean "modern," something he feared and detested.  It was so strange to consider in light of my adoration of Henry Adams.  Thank goodness the anti-Semitism only showed up in the private letters Adams wrote to others and not his essays, novel, or histories.

UPDATE: September 22, 2019.  I ended up finishing New England Indian Summer and The Flowering of New England, and loved both.  I just found and am starting to read The World of Washington Irving, which Brooks called his prequel to The Flowering of New England.  This last opens with a mini bio of Parson Weems, he of the apocryphal George Washington biography about cherry tree cutting.  It is another delightful start.   UPDATE: September 29, 2019.  Brooks' chapter on the South left me a bit disappointed, as Brooks appears to have thrown in slavery as an afterthought and, while he recognizes its horridness and cruelty, he seems more enamored with Jefferson and less sympathetic to Hamilton than later scholars would finally correct. It is funny how some of the things he states appears to recognize the limits of the historical consensus at the time, but he appears timid in moving beyond that historical consensus, and appears to not know how the Southern historians had created this misunderstanding.  I am somewhat dreading the later chapter focused on Thomas Jefferson, because I know he liked to call himself a Jeffersonian in a way I did as a teenager, before I read more of Vidal and then other scholars showing me that Jefferson was a wily political figure who became more and more unwilling to end slavery.  As readers may know, I have long been a champion of Alexander Hamilton since high school, and was a Herbert Croly acolyte in believing the two men's philosophies can be melded for a better America.  Otherwise, Brooks' book remains a delight, as it is filled with extraordinary information and analysis.

David Brion Davis (1927-2019): The power of moral ideas in history and the art of writing history

I somehow missed the death of historian David Brion Davis, who died on April 14, 2019.  His death date is sort of ironic as it is the same day Abraham Lincoln was assassinated in 1865.  Davis' writings centered on the "problem" of slavery, and how it was not until the late 1700s that a Western oriented movement began to develop to eradicate at least chattel slavery, based upon political philosophy, morality in human dignity, and ideas that crossed into revolution over all hierarchies. Davis wrote many books on the subject of slavery, as one may see here at the Wiki page.  Davis' three towering books, which pioneered modern comparative history, spanning nations and continents, and, which promoted social history (history from the "bottom up"), have been:

The Problem of Slavery in Western Culture

The Problem of Slavery in the Age of Revolution

The Problem of Slavery in the Age of Emancipation

Davis' life and work is ably summarized here at the Chronicle of Higher Education, particularly his experience as a soldier in segregated armies in World War II, and his finding inspiration from the historian Kenneth Stampp, who did so much to start a historians' movement away from the awful, racist Dunning School of historians regarding the Reconstruction period, which racist-oriented scholarship bled into a Confederate-oriented view of the Antebellum period (meaning the period leading to the U.S. Civil War), and the U.S. Civil War.  I had recently been re-reading some early Robert Scheer and had seen a reference Scheer made to Davis' father, Clyde, who was a journalist and novel writer. I had not recalled the reference before, and when I saw the middle name "Brion," I quickly looked up Clyde Brion Davis on Wiki, and saw the paternal relationship. It was then I discovered, clicking through the Wiki link for the son, David, that David Brion Davis had passed away in April at the age of 92. Damn, I thought to myself.  However, I immediately was glad Davis had finished The Problem of Slavery in the Age of Emancipation in 2014, as I had read that book two years ago. I had begun to despair that third book in the trilogy may never be written, as the Age of Revolution book had been published in the mid-1970s.  The Age of Revolution was brilliant in helping me understand how the idea of abhorring chattel slavery developed and how non-obvious it was, and almost astonishing it developed at all.  It is easy to think, well, what can this book on something so obvious in our time offer in terms of insight into our own time?  For me, reading about (a) British and French movements against slavery, with the French, moving slower than the British despite the French Revolution, ironically enough; (b) Davis' mischievous, hinting and subtle analysis that there are different types of slaveries, starting with wage slavery, which was developing in Great Britain in the late 18th and early 19th Centuries; and (c) the manner in which most of white American society recoiled  against any movement toward abolitionism, and, at most, favored re-colonization to Africa or even Central or South America, one sees how movements fail and continue to fail, until they succeed. Davis' scholarship, his insight, and his creativity in moving back and forth among the U.S., Great Britain, and France, and sometimes elsewhere, was, again, remarkable.

Davis' three books alone (and his others, such as his lecture book, The Slave Power Conspiracy and the Paranoid Style) are an extraordinary achievement. The books are, admittedly, not easy reads for lay readers, as the books contain detailed footnotes/endnotes--though, for me, the footnotes/endnotes provided much information and understanding about the level of Davis' research, and where one may find nuggets of his philosophical approach that almost screams with frustration at the human condition. I recognize most lay readers find detailed and wordy footnotes or endnotes overwhelming, though they continue to be a delight for my autodidactic and antiquarian mind. I had often wondered how Davis would end his trilogy, and how the book itself would end. I was highly gratified to read Davis' Age of Emancipation book ending, where Davis recognized how, despite the abolition of chattel slavery in much of the planet, something which had been openly supported throughout most of human history (and where even Aristotle spoke glowingly about how "natural" it is to own human slaves or be human slaves), human beings, including in the civilized societies, often easily fall back into such behavior. Davis' final words in the book speak of human trafficking, wage slavery (he could have added prison wage slavery), of how Nazi Germany and the Soviet Union reverted slavery and slave camps, and that any catastrophe from either nuclear war, climate change, or something else, could, again, easily restore chattel slavery on a large scale, especially starting in the region we call The Middle East. Davis then humbly reminded his readers that, if we transported ourselves back into 1860 Mississippi, we would find ourselves confronted with otherwise educated plantation owners who took chattel slavery for granted as a God-given right and, most ironically, a moral duty. Davis' last words in the book state simply and clearly: "The outlawing  of chattel slavery in the New World, and then globally, represents a crucial landmark of moral progress that we should never forget."

I was privileged to have had one personal interaction via email with Davis in the fall of 2012, after The Smithsonian magazine just published a feature article on the Reconstruction period, and the end of chattel slavery in the U.S. after the Civil War, to coincide with the release of the Spielberg film, Lincoln, itself based in part on Doris Kearns Goodwin's Team of Rivals.  The Smithsonian, in a fit of ideological dumbness, assigned the arguably racist Southern so-called humor writer, Roy Blount, Jr.,* to write the article. Blount wrote an article that was right out of the Dunning School, and showed a remarkable indifference to African-American suffering after the Civil War. It was so horrible I could not believe it.  I wrote an admittedly outraged letter to the editor to The Smithsonian, which was not published of course. But I sent via email a copy of the letter to historians Eric Foner, Drew Faust, and David Brion Davis, who each had written not only scholarly books or articles on the eras, but had written popular essays for major publications.  Foner emailed back informing me he was not in the least surprised The Smithsonian editor picked someone like Blount, as, he said, the editor is "quite conservative," but that my letter was an appropriately "strong rejoinder."  Faust gave a more polite reply, merely thanking me for stating my viewpoint (Well, she was president of Harvard at that point, and did not need to have any further controversies...:)). I admit, however, to being most personally gratified by Davis' emailed response.  Davis emailed me regarding my letter, saying:

This is a superb and much needed critique. I've not seen the film of course but it's shocking to read about Blount's article.

Best, David Brion Davis

Yes, I kept that email from October 27, 2012, which is now inside my hardcover copy of The Problem of Slavery in the Age of Emancipation.

David Brion Davis has long been in my personal pantheon of the mid to nearly late 20th Century historians. The historians of that era wrote in a style that some in the academy appear to now feel is too "authoritative," meaning not enough "I feel..." or "It is my opinion" in the text.  I admit to finding that critique silly, as one knows, when one is reading a book, the book itself is the writer's viewpoint.  To put in all those "I's" is distracting in what is a long text, particularly a text with extensive, copious footnotes. For me personally, Davis and other historians of that era--one thinks immediately of David Morris Potter, Richard Hofstadter, Henry Steele Commager, and C. Vann Woodward, for starters--represent the pinnacle of American historical writing. Each of these historians had a penetrating sense of "History" as a continuing argument, recognized the study of history as a philosophical endeavor can tell us much about the impact of ideas in a given society (Potter, Hofstadter and Davis are brilliant on the topic of historiography), and, most important for me as a contrarian type, each recognized those in human history who proved fundamentally wrong in general may not have been wrong in certain particulars. Here, I think of Woodward's great essay on Virginia antebellum lawyer, George Fitzhugh's mischievous "defense" of chattel slavery compared to wage slavery in Fitzhugh's 1856 book, Cannibals All: Slaves Without Masters, reprinted in Woodward's American Counterpoint: Slavery and Racism in the North-South Dialogue. Yes, I get these historians I have named are all white men. However, the racial and sexual status of these historians should not distract us from their insights, their elegant writing, and their remarkable scholarship. And it certainly does not mean that women and those who are not white males cannot or have not reached their level of style and insight. I have, in recent years, deeply admired the scholarship of Glenda Gilmore (her work on the early 20th Century civil rights movement is required reading), Drew Faust, and Jill Lapore, as well as the African-American male historian, Robin D.G. Kelley. I also remain a major booster for the now long gone Rayford Logan, an African-American historian of that 1940s-1970s era, whose Betrayal of the Negro: From Rutherford B. Hayes to Woodrow Wilson aka The Nadir: 1877-1901, remains lost to most Americans, and many American historians, and should be reissued.  Logan really put the historian's Mark of Cain on Wilson at a time when the historian, Arthur Link, was writing hagiographies about Wilson.  It is, however, enough to remark the white male historians in my pantheon are like The Beatles of their profession.  They wrote about American history in a way that allowed other to build upon and recreate, and they remain remarkably unique and compelling to read as this still new century unfolds.

To ape the style apparently favored in too many academic circles, I feel sadness at learning of Davis' passing, and feel badly I missed an opportunity for further communication with him.  My feeling speaks, I guess, to my own frustration about not ever becoming a history professor myself, where I may have interacted with Davis on a professional basis.  There.  Enough feelings? :) 

* I will always remember seeing Blount on television the night Obama won the presidential election in 2008. He appeared drunk to me, and was so ridiculously saddened that Obama won that I thought, My God, is Blount really this racist?  It was a pathetic performance.