Protest and Prejudice

 

It should be obvious to all of even rudimentary intelligence that protest and prejudice aren't one and the same. Prejudice is, in fact, one of the things which may be protested.  It often is protested, in fact.  Similarly, one may be prejudiced against protests and protesters.  

Since the difference between them is obvious, when it's claimed that people who protest are prejudiced, the claim can't reasonably be accepted on its face, without explanation.  Their prejudice and the prejudicial nature of the protest should be established.  If prejudice isn't or can't be established then it may be inferred that those making the claim are, in some sense, prejudiced against the protesters and the protest.

Lately we're deluged with media coverage of protests being made against Israel regarding its actions in Gaza.  We're also imposed upon by posturing politicians and pundits who are apoplectic over those protests and condemn them as anti-semitic.  

Being a Boomer, I've seen, heard of and read about protests since I was a wee lad.  I haven't participated in any, as I'm one of those Boomers who were born late enough to miss the major ones which took place in the 1960s, and am also by nature more an observer of events than a participant in them.  I will participate when in great need, however.

In any case, protests, particularly those which take place on college campuses, don't astonish or appall me.  I consider them somewhat commonplace.  College students are excitable and easily swayed and have a keen sense of injustice, though they aren't necessarily sensible.  They can also be self-righteous and ignorant, though that may be said of humans generally who would rather avoid the rigors of thought and critical thinking. 

It is, or should be, clear that someone who criticizes the state of Israel isn't thereby anti-semitic.  I, personally, think that the creation of Israel assured that the Mideast would be subject to bloody conflict for many years.  That has been the case and I suspect will continue to be the case for the foreseeable future.  I don't accept the claim that any people have or are entitled to have a homeland by grant of God. As a result, I don't think Israel is more or less entitled to exist than any other nation.  I don't think that these opinions establish I'm anti-semitic.  Israel is a nation, and is as subject to criticism as any other nation.

No reasonable person can contend that the Hamas terrorist attacks on Israel in October of last year were justified.  I think that's apparent.  They were horrific.  If it is being claimed by those protesting against Israel on college campuses that they were justified, does that in itself make them anti-semitic?  If it's being claimed by the protesters that Israel's response to those attacks is excessive, does that in itself make them anti-semitic?  If anti-semitism is properly defined as hatred of or prejudice against Jews qua Jews (which seems a common definition of it), wouldn't the consideration of whether conduct directed at them is justified, or whether their conduct in certain circumstances is excessive, indicate that the fact that they are Jewish isn't the sole basis for approval or condemnation?

Mere criticism of Israel's conduct in Gaza should not be deemed anti-semitic.  Is more than that involved in the protests?  If so, then clearly there should be concern about them.  In particular, if Jewish people are being targeted merely because their Jewish, and for being Jewish, the claim of anti-semitism is justified.

The latest protests, at Columbia University, seem peaceful; certainly in comparison to some of those protests engaged in by Boomers against the Vietnam War, for example.  According to accounts I've read, even the police who were called on by the University to clear students away, resulting in arrests, commented on the fact the protesters were peaceful and the University's reaction excessive.  

I admit to suspicion regarding the claims of anti-semitism being made by right-wing politicians and pundits.  Although it's probably unfair to believe that most if not all of them are gibbering, drooling idiots, it seems clear enough that their posturing is politically motivated and disingenuous.  Their relish of the opportunity to be sanctimonious where Ivy League colleges are concerned is too excessive to be genuine.  

So, the question I think must be answered is:  What is it about the protests being condemned that makes them anti-semitic?  To me, that means:  What is it about them that isn't merely a criticism of Israel's conduct in Gaza?  If they aren't anti-semitic, then they should be handled by the authorities like any other protest

Homage to Steely Dan

 I'm not yet retired, and so can't yet attribute my inclination to avoid, for a time at least, the great events of our time to a sense of ennui.  Nonetheless I am so inclined, and so will indulge in another homage, this time to the work of Steely Dan.

I know of no work of Steely Dan I haven't liked.  The duo of Don Fagen and Walter Becker, backed over the years by a legion of highly competent studio musicians, have been consistently good, and have managed to work at a high level despite what I think are the inherent limitations of popular music.  Those limitations derive from the need that popular music be, well, popular.  The songs must sell, and sell well.  That may require pandering to the less artistic among the buying public, and the buying public in our Glorious Union doesn't have a high reputation.  H.L. Mencken reportedly said "Nobody ever went broke underestimating the taste of the American public."

Be that as it may, the music of Steely Dan has been consistently sophisticated, and has made use of styles and themes prevalent not just in rock music but in jazz, blues and Latin music while managing to sell very well.  Many of the band's songs are classics.

I've always thought of Fagen and Becker as having more in common with the Beat Generation than with those who came of music-buying age in the 1970s.  There is, of course, the fact that the name "Steely Dan" was taken from William S. Burroughs' novel The Naked Lunch, where it appeared as the name of a very special dildo.  Burroughs was one of the great figures of the Beat Generation.  Also, they strike me as having in common with the Beats an aptitude for poetry and a disdain for conventions, with none of the histrionic showiness seen in subsequent efforts of rebellious youth. 

But in addition to that, there seems to be nothing at all of the hippie in the band's music.  There's nothing psychedelic there; there's nothing about peace and love.  Peace and love are more subjects of mockery or disillusionment than anything else.  I think of Third World Man or Don't Take Me Alive when it comes to peace, and songs like Everyone's Gone to the Movies, Babylon Sisters and Janie Runaway when it comes to love.

The various conceits of the Me Generation are certainly present, however.  But again when they're made the subject matter they're treated ironically.  The album Gaucho is full of this sort of thing, particularly the song Glamour Profession.

It's unsurprising that the lyrics of many Steely Dan songs are seemingly unclear, and have been subject to interpretation.  But what is surprising about this is that the lack of clarity is the result of clever artifice and metaphor.  Through the use of artifice significant issues may be addressed in a manner which isn't self-important or banal, as are most efforts along those lines in popular music.  The meaning of the lyrics of The Royal Scam (the song, not the album), for example, is far from clear on their face, but some thought and attention to them suggests that immigrants and the American Dream are their focus.

Ultimately I think one's preference for artists of the written word, or the written word when put to music, is based mostly on the extent to which one associates with the author, composer and musician.  That is to say, the fan in that case sees the fan in the artist, has something in common with the artist, or think they do though they may flatter themselves.  The fan may even dream they are the artist, or at least wish they could be like them.

Steely Dan's songs often are seemingly delivered by or made from the perspective of jaded, cynical, sophisticated observers of life.  They're gentleman losers, disconnected and shrewd ("The Gentleman Loser" is the name of a bar in one of William Gibson's cyberpunk novels, if I recall correctly).  They're aware of the faults of people and in society, aware of our many weaknesses and vices, and may even share in them but do so with a kind of blithe, knowing detachment.  

Which may say something about this particular fan, in the end, and not all of it to his credit.

Homage to "Anatomy of a Murder"

Let's indulge in what, in the law, used to be called "a frolic and a detour" from the onerous and distasteful duties imposed on us by this miserable world.  In other words, let's do something for purely personal reasons.  Well, I will in any case.

I happened across the film Anatomy of a Murder playing on TV at the home of a relative, and saw what must have been the last half of it.  I'd seen it before, but seeing it again reminded me of something I think makes it remarkable.  It's a good movie, of course, but what makes it special to me is its mostly realistic portrayal of lawyers and what takes place in a courtroom.  

This is unusual in my experience.  The portrayals of lawyers and trials I've seen, though reflective of what seems to be a fascination with them both, are for the most part inaccurate, sometimes wildly so.  I've made a point of ignoring TV shows and movies which purport to describe them for that and other reasons.  I imagine health care professionals feel much the same regarding the ubiquitous dramas involving doctors and hospitals which likewise fill screens large and small in our Glorious Union and probably elsewhere.

There are good reasons for this movie's accuracy.  The novel on which the movie is based was written by a Michigan Supreme Court Justice and derived from a case in which he was involved as defense attorney.  As a result, it's faithful, for the most part, to what actually takes place in a courtroom.  There are embellishments, as might be expected, but its realism impresses me.

The performances by the actors are quite good.  As to the lawyers, Jimmy Stewart is beguiling as the shrewd small-town attorney for the defendant and George C. Scott is sharp playing the big city lawyer brought in to assist in the prosecution.  It was good to see Stewart in a film which isn't maudlin and sentimental.  I'm ashamed to admit that until recently I didn't know that the judge was played by none other than Joseph Welch, who represented the U.S. Army in the Army-McCarthy hearings and famously smashed Joe McCarthy by asking him if, at long last, he had no decency.  His judge was wise to the antics of the lawyers and sardonic, but presided over the proceedings fairly and quite well. 

Mirabile dictu, lawyers were shown actually researching the law, though they used books to do so, the film having been made in 1959.  They investigated; they interviewed witnesses before trial; they brainstormed.  The examination of witnesses was lawyerly as were the objections.  They engaged in some histrionics in the courtroom (it was a murder trial), and crowded the witness stand a bit too much, but perhaps that's more common in a criminal trial than it is in a civil trial (I'm not a criminal lawyer).

The defense raised to the charge of murder was that of "irresistible impulse"--the defendant knew what he was doing was wrong but was overwhelmed by an impulse he couldn't control due to his mental condition.  Experts testified, and their testimony was credible.

Interestingly, there was some coaching of the witnesses, and particularly the defendant.  Rather adroitly, the defense lawyer played by Stewart suggested to his client what defense could be successful while others would fail without actually telling his client what to say and how to act.  I have no doubt that this happens.  

The American Bar Association once asked 12 "prominent lawyers" what they felt were the best "legal movies."  Anatomy of a Murder was one of them selected.  Frankly, I don't understand why some others making up the 25 selected were chosen, and this makes me wonder just what "prominent" meant in these circumstances.  My Cousin Vinny was amusing in a silly way, but wouldn't be one I'd choose.  I have no idea why Chicago appears in the list.  Finding Miracle on 34th Street on the list was a shock.

Is this post entirely "a frolic and a detour", an utterly frivolous bit of fluff on my part?  Perhaps not.  It's important, I think, that people know what actually takes place in a courtroom and what should take place according to the rules of evidence and procedure.  It may be even more important that people understand why matters result in a trial.  We're witnessing a series of trials being brought which are believed to be baseless and brought for political or malicious reasons by those being told that is the case by the defendant and his minions.  They're believed, although anyone with knowledge of how the system works would understand there's nothing unusual about them.

The death of O.J. Simpson reminds us of the bizarre trial which took place in which his "dream team" and it seems overwhelmed prosecutors, an easily manipulated Judge, poor witnesses and a jury suspicious of the police combined to create a circus.  That should not and need not happen, though it might for a number of reasons.  The system has checks in place to prevent such things from taking place, though, and the perversion of the process isn't easily achieved.  Unfortunately, the unrealistic portrayal of it has added to a tendency to distrust it in many.

 

The Arizona Supreme Court's Use and Abuse of Statutory Construction

 

By now, all know through the magic of modern media the opinion of the Arizona Supreme Court in the case of Planned Parenthood Arizona, et al v. Mayes, et al.  In that opinion it held that a law adopted in 1864, when Arizona was a mere territory, effectively making abortion a crime unless to prevent the death of the mother, is applicable here and now, some 160 years later.

It always disturbs me when a court reaches more than a century into the past to dispose of issues coming before it now.  I think that in many cases, what was the law then was adopted in circumstances so different from those pertaining now that it's applicability is suspect.  This attitude has made me feel embarrassed, often, whenever I've cited legal antiquities after a search reveals that they are the only authority supporting the position I take in a case.  I can't help but think that the court and opposing counsel will conclude that if they are all I can rely on, there is a problem with my argument.

Regardless, though, laws adopted long ago which haven't been expressly repealed or ruled invalid by a court remain.  They exist and are available in a court of law.  They may well be binding from the perspective of the law.  The law is rather like the Internet in that all our statements, decisions, rules and regulations incorporated into the law cannot be erased no matter how evil, unjust or foolish they seem now.  For example, there are laws prohibiting certain sexual acts between consenting adults and laws prohibiting adultery still out there, though for the most part unenforced.

The opinion is lengthy, and I can only review it in summary in this post.  However, review it I will and I think the review addresses the major points and arguments made.

Since the 1864 law (let's call it "Law 1") was adopted by the Territory of Arizona, the State of Arizona adopted a law (let's call it "Law 2") which in pertinent part states that except in the case of a medical emergency, an abortion may not be knowingly and intentionally performed if the probable gestational age of "the unborn human being" has been determined to be more than 15 weeks.  At issue was the question whether Law 1 or Law 2 applies at this time.  In other words, at issue was the question whether an abortion could be performed under Arizona law if it was performed at any time before the expiration of the 15 week period.

Because neither Law 2 nor anything else expressly repealed Law 1, it is our fate as it was the fate of the Arizona Supreme Court to consider the rules of statutory construction, as it was necessary to interpret Law 2 as related to Law 1.  A law adopted by a legislature is to be construed to say just what it says if its language is clear and unambiguous.  If it is, then construction is not required.  If a law is ambiguous, then recourse may be had to a number of other sources in interpreting it, including, e.g., legislative history (the proceedings of a legislature during the debate and adoption of the law).  Generally, a law is considered ambiguous if two reasonable persons would interpret it differently.

Neither Law 1 nor Law 2 strike me as ambiguous.  The majority of the Arizona court decided Law 2 was, however.  As I noted, it didn't expressly repeal Law 1.  However, it clearly stated that an abortion was prohibited when performed after 15 weeks, unless medically necessary.  It doesn't take much in the way of intelligence to infer from this that an abortion performed with the 15 week period is not prohibited.  If you think as I do and the plaintiffs in the case did, you would conclude that the law allowed abortions to take place within the 15 week period; in other words, that it authorized abortions during that period.   Someone could therefore have an abortion in that period under Arizona law without incurring any penalty under the law.

 The majority conceded this was a reasonable construction of Law 2.  However, it determined that there was another reasonable construction.  Law 2, according to the majority, could reasonably be interpreted merely to describe the circumstances in which a physician may or may not be penalized if an abortion is performed. There being two reasonable interpretations according to the majority, Law 2 was ambiguous.

The majority then looked to legislative history.  It decided from that history that Law 2 was adopted in response to the U.S. Supreme Court decision of Roe v. Wade.  It opined that the Arizona legislature only adopted Law 2 because it had to do so to avoid running afoul of that Supreme Court decision.  According to the majority, Arizona never really wanted there to be a right to abortion.  So, Law 2 can't be construed to that effect.  Also, Roe v. Wade now being overruled, Law 2 must be considered inapplicable and Law 1 thereby must be applicable.

It's clear that Law 2 must be deemed ambiguous in order for this opinion to have any basis.  But the grounds on which the majority decided it to be ambiguous strike me as decidedly unreasonable.  If a law says X may be done in certain circumstances, but may not be done in other circumstances, I'm at a loss to interpret it to say X may not be done in certain circumstances, and may not be done in other circumstances as well.  X is allowed, or authorized, in one case and prohibited in another. 

I'm uncertain whether the majority is contending that being allowed or authorized by law to engage in certain conduct doesn't mean one has a right to do so, or something else.  If the former, I don't know how to characterize a legal right except as providing that something may be done without incurring a governmental penalty.  Under Law 1, abortion was penalized in any circumstances if not needed to save the life of the mother.  Law 2 is clearly inconsistent with Law 1.  Law 1 had no effect after Law 2 was enacted.  This would seem to be an implied repeal.  The fact that there are statements which appear in the record that it isn't really intended to be a repeal, which the majority notes, doesn't detract from the plain language of Law 2.  The fact that Roe v. Wade was overturned does not render Law 2 invalid, which the majority seems to believe, as Dobbs doesn't hold that a law like Law 2 is unconstitutional.  So, it's necessary that Law 2 be repealed to be ineffective.

The sad lesson is that the rules of statutory construction, though useful, can be used to support more than one interpretation of the law.  In the end, a judgment must be made regarding when those rules can reasonably be applied.  The Arizona Supreme Court's determination that Law 2 is ambiguous seems to me to be contrary to a common sense reading of that law.  A real effort is required to construe it as saying abortion is not allowed in the first 15 weeks, and construing it to say merely that abortions will not be penalized in some circumstances would amount to codifying a decision not to enforce the law under certain circumstances.  

 

The Modern Eclipse

It wasn't just any eclipse, was it?  I've never witnessed a total eclipse of the Sun, I admit.  So, however enthralling that experience may be, it hasn't been within my experience.  But I was alive when the last totality was visible in these United States, and even know of someone who witnessed it and spoke to him about it.  I saw media accounts of it as well.  But my recollection is that the accounts of that eclipse were not nearly as bewilderingly exclamatory and rhapsodic as the accounts I've seen of the one that took place yesterday.

Media accounts I saw addressed, live, such things as the reactions of those who gathered at a particular location in which totality could be observed to be married during the eclipse; the reactions of various animals in a zoo to the eclipse; the remarks made by people witnessing the eclipse when questioned; and even claims made by employes of Fox News that immigrants were donning black clothes and taking advantage of totality to illegally cross into our Great Republic unobserved, somehow, presumably during the approximately four minutes the totality lasted.  All who spoke agreed the eclipse was wonderful.  There can be no question of that.  But as much as this was emphasized, and repeated--and thus the reference to "rhapsodic" accounts--somehow, the descriptions made were uninspiring in the end.

The media representative assigned to witness the impact of the eclipse on people getting married during the eclipse unsurprisingly declared that doing so was a unique expression of love, and this declaration was confirmed repeatedly by those getting married.  Love was mentioned more than once during that broadcast.

At the zoo, we were told that birds were being noisy, a giraffe was being trailed by a zebra, an ostrich may or may not have laid an egg in the run up to totality, and flamingos and penguins began grouping together as they apparently do at night.  The ominous, and frankly silly, statements regarding immigrants dressing in black to take advantage of the totality on Fox News were made in a clip I saw.  Whether it occurred to them that the same could be done every night, and it was unnecessary and indeed foolish for anyone to await a solar eclipse and a four minute period of near darkness for this purpose, I don't know.

My guess is that most would know that temperature will drop during a total eclipse, at least if they thought about it, in addition to it growing dark, so remarks to that effect didn't strike me as newsworthy.  But I don't doubt that the eclipse itself was newsworthy, as a total eclipse isn't something visible regularly, nor do I doubt that witnessing one personally can be a remarkable and even spiritual experience.  What I do doubt, however, is that successive broadcasts taking place along the path of the eclipse, during which the same amazement was expressed, the same questions were asked,  the same responses were made and the same observations noted, were needed or interesting.  In fact, I think this rendered the eclipse mundane.

We're told that in ancient times in all cultures eclipses were wonderful, magical, supernatural, awe-inspiring and fear-inspiring events which profoundly influenced people and events.  Most of us no longer believe in magic, and know that eclipses are not supernatural.  But wonder and awe still seem appropriate reactions to a full solar eclipse.

Some remarks were made regarding the eclipse which indicated that certain people appreciated the event as reflecting the wondrous nature of the universe,  its sublime workings, its vastness and our small place in it although we are nonetheless part of it.  I think that's what would strike me if I had the good fortune to be present; that together with the acknowledgement that our disputes, conflicts and wars are petty, and our conceit boundless.

But in the main it was clear that coverage was the essential purpose of the media accounts of the event; coverage of everything. What took place, everywhere, over and over again; what was said over and over again; and what the feelings were of those who were witnesses.  The purpose was to describe the same event which took place over and over in different locations and to do so in much the same way in each case.

There's nothing wrong about doing this, but there's nothing significant about it either.  Nothing positive is achieved.  Curiously, this extensive and repetitive exposure diminishes an eclipse.  Our technology allows each of us to have a say about everything that takes place in the world, to express our feelings about them, and plainly most of us think it's important for us to speak and be heard.  Our society caters to this, as does the media.  Unfortunately, though, in most cases what we feel, and think, and say isn't remarkable or insightful or interesting.  

It seems that our media, if not our society or culture, is premised on the belief that what every person thinks or believes or says has equal significance, important and value, and should be known.  Our technology certainly encourages each of us to express our thoughts and feelings by ourselves, without the assistance of anyone else.  I'm uncertain, though, that this premise is useful, and suspect it deadens our appreciation of important things in life.