Friday, May 13, 2022

A Tough Roe to Hoe



I almost feel obliged to comment on the remarkable leak of what seems to be a draft of a majority opinion of the Supremes reversing Roe v. Wade, and the remarkable nature of that opinion.  It's not something I enjoy doing.  Abortion is something to be taken seriously, and given serious consideration.  It isn't clear to me that serious consideration is possible in our times.  In this post, my comment will be limited to what I think is remarkable about the opinion, rather than its impact or its conclusion.

It's unusual for long-standing precedent to be reversed by a court, but it happens, and is possible in certain limited circumstances.  So I don't think the fact this opinion would if adopted reverse Roe v. Wade is remarkable in itself.

What is remarkable to me is the tone of the opinion and the nature of the argument made, in certain respects.  Its tone is angry and contemptuous.  The decision reversed, and therefore those Justices who made the decision, are ridiculed.  It seems a kind of rant; its author pontificates.  He seems to have a rather enormous axe to grind, and he makes a display of grinding it.  There's a kind of exhibitionism involved in writing of this kind.  It's unusual for a Justice of the highest court to write in this fashion, and it's especially unusual for a majority opinion on a very serious subject to be infused with such self-righteousness.  Sometimes, the author of a dissent will indulge in sarcasm.  But majority opinions make law.  Bismark famously commented that its best not to see how laws and sausages are made.  It seems that may be true of case law as well as law adopted by legislatures.

It's also striking that the author of the opinion goes to such lengths to support the claim that abortion has never been considered a right, and instead has been considered a crime.  The law as it existed centuries ago, and the writings of commentators on that law who also existed centuries ago, are seldom pertinent to any lawyer or court and are generally disregarded in the actual operation of the law.  They're the concerns of historians of the law.  Nobody cites Blackstone or Hale in court proceedings.  One may as well cite Ulpian or the Code of Justinian, if not that of Hammurabi.

It's remarkable that the author of the opinion failed to understand that engaging in such a rhetorical exercise would merely make him appear silly, or pedantic, or a crank, or antiquated, or prejudiced.  It can't be denied that the laws of the past were in many cases cruel and the result of injustice, bigotry and superstition which at least ostensibly have no place in the modern world .  Why bother referring to them in reversing a decision on the grounds that the right it relies on doesn't appear in a document so clearly the work of men of the Enlightenment--men who claimed rights the existence of which was denied, or at least thought subordinate to that of a King?

It's possible that this first draft in the normal course would have been modified to be less of a rant and more like a reasoned decision.  My guess is it certainly will be now that it's been exposed.  If not, then I suspect we'll see concurring opinions that are somewhat less virulent and less dependent on antiquated law and thinkers.



 

Friday, April 29, 2022

Free Speech and the Suspension of Judgment


Several times in this blog o' mine I've noted the confusion which often surrounds pronouncements and platitudes regarding what we enjoy calling free speech.  Here in our Glorious Union, it's claimed that our right to free speech is grounded in the First Amendment to the Constitution, which states that Congress shall make no law abridging the freedom of speech.  Strictly speaking, of course, no right is created thereby; it's a prohibition.  It doesn't say everyone has a right to free speech.  It says only that Congress may not adopt laws of a particular kind.  

Although many feel that the First Amendment provides that nobody may restrict our freedom of speech, it very clearly refers only to Congress.  Via the Fourteenth Amendment and case law, it's been extended to apply to actions by state and local as well as the federal government, but it doesn't relate to the actions of any person or entity which isn't a representative or agency of a government.  

One can if one wishes claim there's a natural or God-given right to free speech, but it's difficult to rely on such a claim to prevent someone from restricting our speech.  If we wait for nature or God to punish those who make us shut up or prevent them from doing so, it's more than likely that we'll be unable to speak when that happens, if that happens.

There's a kind of romance associated with free speech.  The picture associated with this post is of someone speaking at Bughouse Square in Chicago, across from the Newberry Library, where I labored as a student for a time (studying J.S. Mill and the Philosophical Radicals, interestingly enough).  The speaker is speaking from atop a box, possibly a soapbox as would be traditional.  The purpose of the box is to make the speaker visible above the crowd which (it's hoped) would be listening intently to what's being said.  This is an image which is conjured up from time to time in reverence to free speech--the common, or perhaps uncommon, person delivering views in public.

It's an attractive image, as is the idea of free speech itself.  Everyone should be able to speak their mind without fear of reprisal.  But in these sad times the tendency is more and more to claim that that everyone should be able to speak their mind no matter what they say and without objection or limitation.  Reprisal isn't required to violate free speech, according to some of those who self-interestedly champion free speech these days.  Vocal or active disagreement may violate the right to free speech, or a boycott may do so, even when by private persons.  Even shaming may do that, or not being allowed to say something in a particular (private) place or on privately owned media.

This is called censorship, and when it is called that those who make the claim also do so as a result of their confusion, or ignorance regarding the meaning of the word.  A censor is a government official.  Censorship is an official action, not a private one.

Even the First Amendment and the legal right it creates (to the extent there is a "right") is limited.  The government is not prohibited from restricting speech in certain circumstances.  Since the First Amendment doesn't apply to private conduct, it makes sense that a private person or entity would be able to restrict speech to a much greater extent than the government particularly where the speech is taking place in property the private person owns.

This shouldn't be surprising.  It should be even less surprising that certain speech is unworthy of protection beyond legal protection, and that no "right" to that speech exists.  People have no more right to indulge in malicious, stupid, ignorant, bigoted or hateful speech than they have a right to be malicious, stupid, ignorant, bigoted or hateful people.  Other people are perfectly free to object to such speech or people and act against them, within the law.

Free speech doesn't entail that all speech is equally worthy, or that there is no basis on which speech of any kind can be objectionable.  Free speech doesn't require that we suspend judgment when we encounter speech that is despicable and accept any view voiced regardless of its merit.   We need not tolerate all speech, just as we need not tolerate all conduct on the grounds that all people are free to do as they please.  The legal right of free speech and the First Amendment are poorly served by those who claim the right to say whatever they want whenever or wherever they want.


Friday, April 15, 2022

The Timely Rage of Howard Beale


I wonder how many recall the movie Network and its seemingly demented anchorman, Howard Beale, played by Peter Finch.  Beale was maddened by the mess the world was in, thought his job as an anchorman served merely to promulgate lies and hypocrisy, had no answers to any of the world's problems, but thought it necessary, before addressing them, for all to get angry.  Famously, while on national TV, he urged viewers to throw open their windows and shout "I'm mad as hell, and I'm not going to take it anymore!"

The film came out in 1976, but what he rants against, initially, are characteristics of the world in which we live now in most ways.  It's interesting to watch the clip, which is available like so much else on the Web.  Not much has changed.  

His rage and his phrase resonate.  People throw open their windows and shout.  The network for which he works milks it for all it's worth, of course, changing its news format to something which is also fairly familiar in these sad times (think Fox News), geared towards pandering to the lowest common denominator.  Mad as hell in more ways than one, Beale's persuaded by the network's corporate masters to become their shill.  Things go on much as they did before.  It's money that matters, as Randy Newman sang.  Not much has changed in that respect, either.

No figure quite like Beale has appeared in today's traditional media (yet), but the rage is there, and we're not limited to traditional media anymore.  There are plenty of seemingly demented souls on social media.  Also, there are plenty available to take advantage of them as the network took advantage of Beale in the movie.

Those who take advantage of our rage now are little different from those who took advantage of our rage all those years ago.  In a way, the continuance of our desire for money and power and our facility in devising ways to pursue them serve as comforting in a time when things seem to become less and less in our control and life more manic.  Politicians, the media, corporations continue to manipulate us.  Even our anger can provide them with opportunities by which they may be benefited.

Until it's directed against them.  One wonders whether that will ever take place, though.  It may on a temporary basis.  The French Revolution was a case of rage directed against those with political and economic power which destroyed those with power with considerable efficiency.  The Terror was an expression of that rage.  The change which took place as a result was extensive, though not total.  

It seems to me that outside of that remarkable event, our history indicates that we're fated to be manipulated by the same kinds of people who've always manipulated us, in saecula saeculorum.  After all, we have the same faults they have; we merely lack the means by which to indulge them.  Our plight is self-perpetuating.

Not much will change.


 

Wednesday, April 6, 2022

Homage to Saint Simeon


The Saint that is the subject of this post, and homage, is that Simeon who is described as a "holy fool."  I don't give homage to that Simeon who is known for the length of time he lived on a small platform atop a pillar, though it must be admitted that this is a remarkably stupid thing to do.  Homage is inappropriate in the case of that Simeon.  Homage is, I believe, due the Simeon who apparently lived in the 6th century C.E. or A.D. and was considered, justly it appears, to be mad.

That particular St. Simeon famously dragged the corpse of a dog behind him in his travels.  He would blow out candles in churches.  He was also known to throw nuts at the clergy during masses, and also at women.  I'm uncertain why he threw nuts at both.  If there is a connection between them, and them and nuts, it escapes me.  He was known to skip and dance his way around the arena during public performances or games.  On feast days calling for fasting he would eat huge amounts of food, particularly beans, and then proudly indulge the effects of eating that "magical fruit."

He is shown in the picture above, apparently doing a kind of summersault for the delight of those waiting along his path.  The dog appearing with him is presumably dead.  He's known as the patron saint of puppeteers, and pictures of him sometimes show him brandishing a puppet of some kind--probably an angel.

In the peculiar logic of religious belief, his bizarre behavior is claimed as evidence of his saintliness.  Sometimes, it's maintained that he acted like a lunatic in order to demonstrate that life on earth was a farce, and only the Kingdom of God important.  Perhaps he is meant to be a kind of Christian version of Diogenes.  After all, according to Plato, Diogenes was Socrates gone made.

But I confess that I suspect he was mentally ill.  I also confess that it delights me that such a person was made a Saint.  A crazy Saint is worthy of reverence.  I must see if there is a St. Simeon the Holy Fool medal.  I'd gladly wear it.

And, although it seems this Simeon isn't the patron Saint of fools, it's appropriate that there be one, particularly given the prevalence of fools here in our Great Republic and elsewhere.  Those who believe in such things as a worldwide conspiracy of powerful pedophiles should have someone they may ask to intervene with God on their behalf, and who better than the nut-throwing St. Simeon?  Though it seems they've lost their minds, they wouldn't pray to St. Anthony being uninterested in finding them.


 

Thursday, March 17, 2022

The Law as Public School Teacher



You'd think our Glorious Union has had enough of laws seeking to dictate what is or is not taught in public schools.  The infamous Butler Act, adopted by the State of Tennessee nearly 100 years ago, led to the Scopes Trial, which led to the humiliation of William Jennings Bryan (and possibly his death mere days after the trial concluded) by Clarence Darrow, to some blistering articles by H.L. Mencken, and made the United States the laughing-stock of a good portion of the Western World, is perhaps the most notable law which sought to do so in modern times.  Or at least it was, until recently. 

The Butler Act at least had the virtue of clarity.  That law stated in pertinent part "[t]hat it shall be unlawful for any teacher in any of the universities, normals and all other public schools of the State which are supported, in whole or in part, by the public school funds of the state, to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals."  I know, the use of the word "story" in the law is amusing.  The legislators of Tennessee were apparently unaware of the implications of that word.

But now the State of Florida has adopted a law which similarly seeks to regulate what takes place in classrooms, which not only lacks clarity but seems to flaunt its vagueness.  This is the so-called "Don't Say Gay" law, officially Florida SB 1834."  It states, also in pertinent part:

 "A school district may not encourage classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students.  A parent of a student may bring an action against a school district to obtain a declaratory judgment that a school district procedure or practice violates this paragraph and seek injunctive relief. A court may award damages and shall award reasonable attorney fees and court costs to a parent who receives declaratory or injunctive relief."

Defenders of the law like to point out that it provides that discussion of sexual orientation or gender identity is only contrary to the law in kindergarden to third grade, according to its terms ("primary grade levels").  Who would object to that, really?  I doubt anyone does.  But that's not all the law says.  It also says discussion of such topics may not be encouraged "in a manner that is not age-appropriate or developmentally appropriate for students."  So, the law clearly applies to students of other grade levels.

A reading of the law raises several serious questions:

How does one encourage classroom discussion?  Must the discussion take place in a classroom for the law to be violated, and a cause of action arise?  What is "sexual orientation or gender identity"?  Does the fact that the law refers to a "school district procedure or practice" indicate that encouragement (whatever that may be) by a single, "rogue" teacher or other school district employee (a janitor?) wouldn't be actionable? Is it necessary that a policy or procedure, sanctioned by the school district expressly or by implication, as an entity, exist? What do "age appropriate or developmentally appropriate" mean? Is that left to the courts and the lawyers who litigate claims to decide?  Just what kind of damages are available to a parent in the action created by this law? 

What is "age appropriate or developmentally appropriate" is clearly subjective, and would vary from student to student.  Florida's legislature probably gave parents the right to sue under the law in an effort to avoid enforcement of the law being considered "state action" for constitutional purposes.  But that would leave interpretation of the law undetermined until precedent could be established through the courts, and that won't happen anytime soon.  In the interim, school districts and teachers will be justly terrified of being sued by some parent or another who thinks wrong words are being spoken in classrooms.  They may therefore be inclined to take fairly drastic steps to avoid litigation, e.g. refusing to require the reading of any books the subject matter of which involve sexual relations, prohibiting the use of certain words in classrooms, disciplining teachers, etc.

In short, it's a shoddy law, and will be difficult and expensive to implement.  The cynic in me wonders if the law was adopted purely to discourage talk of sex in the classroom, especially talk of particular kinds of sex.  Sex is something which has always frightened Americans, especially when it comes to the task of making children aware of it.  I think most of them would like if others had that task.  It may even be, ultimately, a form of posturing by politicians, always interested in obtaining popular support (at least when it doesn't interfere with monetary gain).

The law is alleged to be one protecting parental rights.  But do parents have a legitimate interest in making certain their children under the age of majority don't hear certain words of learn what other people are in terms of gender or sexual orientation?  Is it possible, indeed, that they think students won't otherwise learn of such things or speak about them unless they're "encouraged" to do so by teachers?  Only a fool would think that.

For my part, I think most parents are detriments to education, generally speaking.  They recognize that basic skills such as reading, writing and 'rithmatic (as the old song goes) must be acquired, though they probably would prefer that the use of the legendary "hickory stick" be reserved to themselves.  But otherwise, I think the preference of most is that their children think like them, be like them, talk like them and act like them until they become adults, at which time parents can claim that they're beyond their control and influence.  The sad fact is that most parents would prefer that their children not learn more than their parents have, at least in cultural or social matters in my opinion, and it may be that this law is an expression of that fact.

Justice itself isn't blind, but the law is, in the sense that the law may be good or bad, wise or stupid.  This particular law is stupid.  But it is a law nonetheless, just as the Butler Act was law, and may wreck all the havoc it did, and more.