Here is about a minute of a talk I gave on camera for Adam Tebbe's independent documentary about zen in the United States. Adam traveled around the U.S. trying to hit some of the smaller sanghas as well as major ones.
I sat down with him in Las Cruces during his New Mexico leg.
Tuesday, July 21, 2015
Sunday, July 12, 2015
|Merchant dressing room. Photo taken with my phone.|
There is much chatter in theatre-related media about the behavior of audiences lately.
On Broadway, a man jumped onto a stage and attempted to plug his phone into an outlet on the set. (To his chagrin, the outlet was not real, and if he thought being scolded by security was embarrassing, how he must have felt the next day when the wrath of the internet fell on him.) In a separate incident, Patti Lupone chewed out a patron from the stage because he was "texting" during the performance.
Funny articles are appearing here and there about an allegedly growing sense of anger harbored by actors toward their audience. That seems silly. There are so many old stories about actors intervening in audience behavior. There's a famous story about John Gielgud stepping to the footlights and addressing a couple of old ladies who were being a bit loud and intoning "Do....you.....MIND?" at them, and lots of others. Trinity Rep's audiences have known for many years that the actors will not hesitate to engage in direct interaction with patrons.
When I played Tybalt in Firenze, patrons were served alcohol and aperativi before the show and one night we had a couple of young women rather obnoxiously drunk on a blanket in front of our playing area, one of whom was particularly distracting. After being stabbed in the neck by Romeo, I made sure to lurch forward and die in her lap.
These war stories involving patrons are fun, but meanwhile I keep noticing that backstage behavior seems to be changing, too. Technology is rapidly changing social behaviors and this is going on backstage as well as in the house.
I don't know how it is on Equity stages since I'm no longer in that realm, but where I've worked over the last couple of years actors and crew seem more wedded to their phones even while the show is taking place. In a dressing room, I don't care: look at a magazine, shut your eyes, speed through lines, play Trivia Crack, whatever you do. Dressing room or green room is the right place for that, as long as you can hear what's going on onstage and be ready to do your job. I'm talking about the wings.
At Unto These Hills last year, I would see actors produce their phones from pockets of their costumes and check their screens while walking from one side to another. During one performance, an actor's phone started to ring - in his pocket, onstage. This was the first show where I noticed crew members frequently looking at phones and iPads while a show was going on. They never missed a beat from what I could tell. Aside from the phone that rang in that actor's pocket, the behavior didn't appear to affect what happened onstage.
Or did it? That's the thing about live theatre. The energy and the awareness of the performers (and I include backstage crew in their own way) makes a difference in imperceptible as well as obvious ways. Just as, at a sacrament, when the officiant's attention is elsewhere or divided, you can feel it. You might not put your finger on it but something is off. Zen Master Seung Sahn would have made a splendid theatre director: "When you do something," I can hear him say, "Do it 100 percent!"
Yoshi Oida talks about his preference to be in the wings or even behind the house during performances, in order to pay attention to the audience's responses and mood. (He speaks of "smelling" the audience.) At the Black Box Theatre, where I've been doing most of my work in Las Cruces, there is almost no wing space but there are ways to stay connected with what's happening. Live theatre is social.
We are performing Merchant of Venice in an old proscenium house where there is limited wing space - and several of the younger performers hang out there because the dressing rooms are hot and muggy. And they've got their phones going. We could probably retire the traditional blue clip lamps that light our way, as there is enough light from the phones.
Just so I'm not misunderstood: I don't necessarily equate use of phones with antisocial behavior. I have an iPhone myself and it is handy to have this little computer close by. I communicate with it, read news articles on it, and play chess on it. This is not a curmudgeonly rant about cell phones.
What this is about is different behaviors for different spaces. In this case, green room behaviors spilling into the wings. I was at Trinity before iPhones were a thing. Very good, attentive actors would recreate in the green room during shows. They'd pay attention to the monitor while flipping through a book, relaxing on a sofa, maybe even play a hand of Solitaire. These are ways to decompress during a long show. Card games were a favorite pastime. So were pranks.
When you stepped from the green room into the wings, however, different behaviors kicked in. No one played Solitaire or read People magazine in the wings. The wings were a space for silence, preparation, and full attention on the performance. No one had to explain this. There were things you did in the green room and things you did in the wings.
The other night, curtain call was nearly delayed. Several actors were in the dressing room. Some on their phones, some just chatting, as you do. It's hard to hear in there - all we have is a crappy baby monitor that the stage manager sometimes forgets to turn on. Somehow or other, a few of the actors lost touch with what was going on and suddenly they heard the audience applauding and scrambled madly to the wings.
No harm done. I'll just say this: expectations are changing. It's interesting to watch how fast that happens, and with seemingly no discussion.
Saturday, July 11, 2015
The Artesia detention center here in New Mexico may have closed at the end of last year, but serious issues remain and they require action, particularly as it appears that the Obama Administration is in flagrant violation of international law – to say nothing of human decency.
Homeland Security Secretary Jeh Johnson is on record testifying to the U.S. Senate that detention policies to which asylum-seekers are subject are being used as “an aggressive deterrent strategy,” and he has made the same claim to the press. This is an open, and even boastful, violation of the 1951 Refugee Convention.
In These Times offers a fresh account of the conditions at the South Texas Family Residential Center in Dilley, which replaced Artesia. The author is an Arizona resident who did some volunteer legal-aid work at the center, named John Washington. By his and numerous other accounts the conditions which were the subject of much controversy in 2014 continue at the new center.
Just a few of the outstanding issues are:
- Flagrant violation of the 1951 Refugee Convention in the use of harsh detention policies as a deterrent to unauthorized immigration.
- Fast-tracking of deportations endangering families with legitimate claims · Prohibitive bonds lead to extended periods of incarceration
- Conditions within Dilley prompt many families to drop their claims, which is a violation of their right to seek asylum
- Denials of due process, lack of access to legal representation and adequate translation
- Reports of people being kettled in cabins with strangers and deprived of privacy and dignity
- Harsh and punitive conditions at Border Patrol cells leading to illness and psychological distress for families including children
- Dilley is an enterprise that derives profit from prolonged incarceration of these prisoners (and calling them prisoners is only honest). This creates a perverse incentive.
This is not an improvement over the conditions at Artesia. This is an obscenity that tarnishes any fabric of national honor. It cannot be ignored. How will we address it?
Wednesday, July 08, 2015
|Early Merchant rehearsal, scripts still in hand, pencils tucked in caps. With Darin Robert Cabot, left.|
This continues from the previous post, which sets forth the Very Big Problem with The Merchant of Venice and my assignment to play Shylock. Click here to read that one.
The following is cobbled together from notes, journaling, and comments I've made for local interviews.
Shylock appears only in five scenes, and walks out of the play in Act IV Scene 1.
A personal "what if." I'm a third-generation Italian-American. My grandfather was a baby when the family came over. My grandfather experienced social prejudice against Italians, despite his service in World War II. My father saw a little. Me, very little. Obnoxious stereotypes prevail, of course, but I've not experienced direct oppression or abuse for my ethnic background. My grandfather stood a real risk of being punched in the face for being Italian; I've not experienced that, but I can imagine what that would be like. In the face of that, and with very little formal schooling (he quit after sixth grade), he became a successful businessman.
Thinking often of my grandfather, I've come to relate to Shylock as a second or third generation Venetian. Born there. Successful. Law abiding. Hard working. My Shylock is secular yet proud of his Jewish heritage. (My grandfather assimilated to WASP business culture but was very proud when I learned to speak and write some Italian.) Within the boundaries set against me (Shylock) I have built something for himself. Nonetheless, treated like a foreigner in my own land; I need permission to move about freely, live in a ghetto, and being spat on, kicked, mugged or scammed, is part of daily life.
Shylock could certainly be played as a flat stereotype, but Shakespeare provides material for a more complex and contradictory - i.e. human - character. What was the playwright's intention? Why write a speech like "Hath not a Jew eyes" yet write such an unjust conclusion for the character?
Clothing choices: Shylock is neatly dressed, what might be business casual in the imaginative time and space of our play. He occasionally wears a kippa but also wears a kufi-style hat.
I don't imagine my Shylock praying much in daily life, but he would have a mezuzah at the entrance to his home, he would go to synagogue every week, and he would see that Jessica is educated in Jewish history and religion.
Act I, Scene 3. We meet Shylock as he listens to Bassanio propose a loan. Antonio is the co-signer, yet he shows up only later, what's that about? It's a very awkward scene between three men.
Shylock's aside: "I hate him for he is Christian" and yet never, in soliloquy or dialogue, does Shylock seem to have a religious dispute. The "Christians" are the people who oppress him: not just as individuals but as a society. I have Cherokee friends who occasionally complain on Facebook about "unegs" - white people as a mass. Shylock has no beef with their god - though he remarks more than once on their hypocrisy. He is angrier that Antonio undermines his business. "He lends out money gratis and brings down the rate of usance with us here in Venice." Right, because that's one of the only ways he's allowed to make a living, and here comes Antonio imagining himself as a Zorro, paying off people's debts to save them from interest and undercutting what enterprise is permitted to Shylock.
(Antonio is like the capitalist who preaches about the free market but is happy with interventions that insulate the right people.)
The easy choice (and a bad one): Shylock is out for blood vengeance from the beginning, to "feed fat the ancient grudge." The proposal of a "pound of flesh" is a devious plot.
Another choice that is supported by the text: Shylock is as bitter as his aside indicates, but he embarks instead on a positive quest. The bid for friendship or at least acceptance is not a deception. It is also in his self-interest.
Shylock never seems religious in private or public, but he is quite proud of Jewish folklore and wisdom tales. "I would be friends with you and have your love," not a duplicitous statement but a genuine bid for acceptance. He has a captive audience because they want to borrow money from him. He tells a long story about Jacob shepherding his uncle's sheep - I play it as an attempt to reach Antonio, to amuse him and show that taking interest is an honest enterprise. Interestingly, the religious argument is presented by Antonio: Shylock talks about human enterprise; Antonio preaches divine providence.
I play the interest-free loan as a serious offer, the pound of flesh as truly a "merry sport," as I have acknowledged early in the scene that Antonio is a low-risk borrower. I don't think he'll default. The "pound of flesh" is a shared joke. The humor in the scene and the unusual loan are tactics for the larger objective of putting this personal conflict to rest. We might not become buddies but maybe the ill-treatment and undermining of my business will stop.
I leave happy. This, too, was a way to thrive.
Act II, Scene 5. Next time we see him, he is losing his servant to Bassanio - the very guy who just borrowed money and needed a co-signer because his own credit was so bad. The guy is like a money sieve, and now Launcelot wants to go work for him instead. Top of the scene, I'm teasing him, but letting him go.
This is the only scene we see Shylock interact with his daughter, Jessica. The Christians have invited him to dinner - he doesn't want to go, but feels he has to. His objective is building bridges, with the long goal of ending the conflict, established in the first act. We allow Shylock to be affectionate with his teenage daughter. He tells her to stay inside only after he hears there will be boys in masks partying in the streets; not unreasonable given their position in this society. He entrusts her with his keys and goes off to his diplomatic dinner date, hoping to build bridges.
Act III, Scene 1. Here is where it pivots; this is where Shylock changes. So much heartbreak has taken place offstage. Jessica ran off, taking a great deal of money and valuables with her. This scene is very tricky. His positive objective has fallen apart. While he was trying to engage Antonio and Bassanio, their friends made off with his daughter - he has been stabbed in the back.
"Why there there there there!" - this is an odd speech, and I have become a student of its disjointed thoughts and pivots. It is commonly believed the speech shows Shylock being more upset about the lost wealth than his daughter. This plays into the anti-Semitic stereotype. On the other hand - it is a pretty big chunk of money, and the ring she took (and pawned) had sentimental value to him - it is the only time he mentions his wife, Leah. (Who is - dead? Divorced? As an actor, I've answered that question for myself.) It doesn't seem to me Shylock is centrally focused on the loss of wealth - but the expense is not nothing, either.
Something I know about anger is that often the object we rant about to our friends is not what's really bothering us. It's easier to bitch about the money than to wail, "Why did she leave?" Because if you go there all you can do is cry. It seems natural to me to read "two thousand ducats in that - and other precious, precious jewels" as a dichotomy, referring to a material loss and the loss of a beloved daughter.
He also says "The curse never fell on our nation til now - I never felt it til now." That's interesting. Previously he has described being spat upon and kicked and tormented in other ways. Historically, he would have been forced to live in a ghetto, subject to curfew, forced to wear identifying clothing. But he says that only now does he feel the curse on his nation - or, as I understand it, the weight of oppression. Losing Jessica is a bigger blow to him than all the previous mistreatment.
It seems like the right way to play the speech, but making it clear is a challenge, and I'm playing against a widespread interpretation of that speech.
It's also important to show human pain because it contrasts with the way Solanio and Salerio have been talking about him in a previous scene, mocking Shylock as running about screaming "My ducats!!" It is important, next time we actually see Shylock, to see him not as the rumor presents him, but as a man in pain, to see a grieving father rather than some greedy moneylender.
Here we have the full-throated "Hath not a Jew eyes?" speech, which is in prose and not in verse. It's eloquent in its way but not pretty. It describes the injustice and marks the point where Shylock begins to focus on revenge. Anger is not good for ethical judgment. The opposite of injustice is justice, but Shylock fixates on revenge. Such is the human condition.
Anger is also a hook through the nose, as we see when Tubal stokes Shylock's anger to a boiling point, for reasons that are not spelled out in the text.
This is the scene where we learn, as does Shylock, that Antonio may indeed be unable to pay back the loan, and suddenly that "pound of flesh" clause isn't a joke, and Shylock is contemplating something unthinkable.
Interesting detail: he tells Tubal to get the arresting officer and meet him at their synagogue. No reason is given. It could be a place where they'd have privacy. Fleeting thoughts about how, in the United States, African-American churches have been safe havens to gather and plan insurrections against racist institutions....
Act III, Scene 3. We play this as if there had been an attempt at mediation offstage. Shylock is having none of it. "Talk not to me of mercy." He says over and over again, "I will have my bond." It's a joke among the cast. "I will have my -- line?" The line is a blunt instrument and he just smacks Antonio with it over and over again. It couldn't be more clear that Shylock has committed himself to a course of action and is insulating himself against changing his mind. It is really a grandiose kind of revenge: not only that Antonio suffer physically, but the state will uphold it, in public and in front of all the people who have tormented Shylock.
Only a very, very angry person could believe this would work out.
Act IV, Scene 1. The court scene. Shylock turns up believing the law upholds his claim. The Duke tries to talk him down, and he is offered three times the money he is owed. He refuses it. Portia, disguised as the hotshot attorney from out of town, declares Shylock the winner of case but offers him one last chance to take justice rather than revenge. "Take thrice they money. Bid me tear the bond." Shylock does not turn back: he says no.
This is a very well-written scene. It's a great courtroom scene. The legal argument is exciting and the stakes are undoubtedly very high. The Duke has yielded his power as judge to a stranger from out of town - and the presiding judge actually grants that Shylock is legally entitled to his revenge. Antonio must prepare to die, and says his goodbyes as Shylock waits with a knife in his hand. It's an amazing scene already, and then at the last second Portia finds the legal loophole.
Sometimes when I play this scene, there is a wave of relief at this point. A sense that perhaps I have a way out of doing this thing, a chance to walk this back and keep face, my point having been made, now let's settle this. But it is now too late. Portia has me over a barrel and I soon realize that, of course, the laws are set up to defend challenges to the existing social relations. I tried to make the court of law a field of class struggle, and the class structure predictably defended itself and crushed me. Within three minutes, Antonio is dictating terms, including that, in return for the "favor" of having his property stripped from him, Shylock also lose his cultural identity: "...that he presently become a Christian." And the Duke says "He shall do this" or else face the death penalty. Shylock has just been stripped more naked than naked - and from the perspective of the play's "good guys," this is a happy ending.
Theatre artists far more august and famous than me have struggled with how to portray this moment. Olivier did this famous long wail after he exited the court. (I've even read that he injured his throat doing it during his run onstage.) In the 2004 film by Michael Radford, in which Al Pacino played Shylock, as he exits the courtroom the crowd tears off his headcovering and spits upon him. Our production is so bare bones, we have no crowd. The final moment of subjugation passes silently between Shylock and Antonio, in a physical gesture as Shylock prepares himself to depart the court. For much of the play, I have alternated between the posture of a confident man and a beaten dog. In this last transition from dog to man Shylock walks out of the play.
Tomorrow, we'll have our first audience, and we'll see if any of this actually plays.
|Yours truly, playing Shylock|
This has been a tough assignment.
Back in January, a backyard meeting took place in Las Cruces among theatre artists in Las Cruces. Most of us had masters degrees, and had worked professionally in theatre; one was a recent graduate of New Mexico State who has been producing shows in Cruces and El Paso. This initial meeting led to a proposal for a professional repertory theatre, which would be launched with a bare-bones production of a Shakespeare play. After weighing several plays, the group selected one of the "problem plays," The Merchant of Venice.
The reason I count it among the problem plays is not just that this "comedy" is very dark, but that it actually presents a theatrical problem. Merchant is a play with a big fat problem sitting squarely on top of it, and the problem can be presented in the single word injustice.
Why this play?
It has an appealing courtship story with a female character, Portia, who is held fast to a preposterous game set up by her deceased father. She can only marry a suitor who solves a riddle and correctly chooses among three caskets made respectively of gold, silver, and lead. We later find out that Portia has an agile mind, an adventurous spirit who is not above laying prankish traps of her own. She is one of Shakespeare's better roles for women (noting that in Shakespeare's time, the role would have been played by a man). The vanities of the well-born suitors who fail the riddle and the exuberant audacity of Bassanio in winning her, the tale of Portia's ring, the nature of Bassanio's friendship with Antonio and how it will change as Bassanio weds (Antonio is apparently a bachelor), all make for a good play. There is, however, the Very Big Problem.
Merchant is best known for its other storyline, the one involving Shylock the Jewish moneylender. When Bassanio decides to attempt the riddle and win Portia, he needs to borrow money. His wealthy merchant friend, Antonio, is short on cash so they borrow the money from Shylock in a very awkward scene exposing bitter history between them. "You call me misbeliever, cut-throat dog, and you spit on my Jewish gabardine...it now appears you need my help!" It is very clear that Shylock, and Jews generally, are treated very badly here. Historically, Jews in Venice lived in a ghetto and were prohibited from most economic activity; lending money at interest was one avenue allowed to them, trafficking in the hypocrisy of a Christian society that openly denounced usury while secretly depending on credit. Jews were simultaneously reviled and essential to the economy.
The play is regarded by many as a libel against Jews. Shylock proposes that instead of interest, the penalty for defaulting on the loan be "a pound of your fair flesh," Antonio goes for it, and when Antonio is unable to pay on time, Shylock takes him to court, dagger in hand, demanding his pound of flesh. The law appears to back Shylock's claim and he comes very close to killing Antonio until a loophole is found, the case is dismissed, and Shylock is forced to convert to Christianity.
The injustice sits there like a repulsive, evil toad. The "good guys" in this "comedy" are openly anti-semitic throughout the play and their cruelty is unanswered. On the other hand, when Shylock attempts to use the law and the court to his own advantage (admittedly, for revenge more than justice), the system defends itself and the walls topple on top of Shylock. At no point are the "good guys" called to account for their hatred of Jews, but Shylock is stripped of his property and even his religious identity, slinking from the courtroom in defeat as the Christians cheer.
If you play it strictly as comedy, the story of Shylock is the story of an uppity minority who tries to pull a caper on the white Christian hero and gets his comeuppance. The ugliness of this plot overshadows the play as a whole.
Our premise was: can we perform the play in such a way that that unconscious injustice is visible to the audience? Can we tell this story and make it plain that the "good guys" cannot see the injustice on which their society is based? This, in my view, would show a contemporary audience something about what we are now - at a time that #BlackLivesMatter is pointing out injustices that have remained invisible to the dominant culture, even while we celebrate the vindication of marriage rights for homosexuals.
Playing it as a drama, then, Shylock can be seen as an angry man reacting to systemic injustice. Perhaps. Shakespeare offers some material to support this interpretation, but not much.
Another question: in attempting the latter interpretation, are we honoring the playwright's intention, or distorting it? Is this, in fact, an honest project in the first place?
In Part 2, I'll talk about my own struggle with this problem as the actor playing Shylock.
Saturday, July 04, 2015
The Fourth of July has come around again, the anniversary of the Declaration of Independence.
For many the 4th is just a day for beer and grilled meat, perhaps some horseplay with loud explosives, and ostentatious displays of self-righteous patriotism.
The Declaration of Independence, as a document, is an outstanding piece of Enlightenment era rhetoric. Still, I grow wearier and wearier of the non-critical and indeed mythical retelling of our history. The politics of the independence movement, the "patriot" cause, the revolution itself and our progress as a nation are complex. It would be a tremendous gift to human progress and the prospect of liberty if we could accept the context of the day we celebrate.
The bold declaration of human equality is stirring even if its author and his cohort did not live up to it in their governance. By the time the Continental Congress was convened in 1774 there was most certainly a class hierarchy in society with pronounced inequalities in wealth and property. Those we call the 'founders' were an elite that made sure independence and revolution did not lead to actual democracy in the new republic.
In any reckoning of the American revolution, the Federalist Paper #10 authored by James Madison is required reading alongside the Declaration. On the one hand, the Declaration declares almost lyrically that government is to be an instrument for popular power (by which they secure life, liberty, and the pursuit of happiness). Madison, in straightforward if less beautiful prose, asserts a different function for a government: to protect property and wealth from the "leveling tendencies" of popular power. It was an argument for oligarchy - the preservation of power for a small group of wealthy males belonging to the right social class.
One should not look back on the 18th century with the mind of the 21st and expect too much of the former epoch. Still, the conflict between democracy (when poor people have power) and plutocracy (when the rich have power and the poor do not) dates as far back as Aristotle's Politics.
Still, the Declaration provides a rationale in the 21st century for continued struggle, to refuse to be shamed into silence on matters of injustice, to acknowledge contradictions and envision their resolution, up to and including radical transformation of existing institutions:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
When that process is led from below, not from an aristocracy but by a mobilization of strong, independent and politicized working people, there is room for the American story to take a new turn even now.
Tuesday, June 30, 2015
Esther Cepeda is a prolific columnist for the Washington Post - she writes two a week. Her topic in today's pages (it is actually dated June 26 but my local paper ran it today) was to critique the fed's plans to vary up the $10 bill, and have Alexander Hamilton share the space with a female historical figure, as yet unnamed. Cepeda describes this as "pure folly" and argues that the founders represented on our money should be left alone. That was all well and good til she arrived at Andrew Jackson. That bitch again.
For reference, click here to read Esther Cepeda's column. My emailed comment follows.
Dear Ms. Cepeda,
This morning I was enjoying your column about plans to vary up the design of the $10 bill. Although I am more open to playing with the design of our money a bit, feel it would be good to elevate some women historical figures, and I'm not worried about Alexander Hamilton's place in history, I appreciated many of the points you raised.
Then we came to your summation of Andrew Jackson and I felt stunned. You wrote,"Jackson was many things - some of them terrible - but he earned his place in history by being someone who actually came from humble beginnings, became president and played a major role in advocating for wider participation of non-landed gentry in democracy."
Talk about burying the lede. This is the president who pushed for the violent relocation of tens of thousands of indigenous people from their traditional lands - with such determination that he refused, as President, to abide by a Supreme Court ruling against him. While pushing the Indian Removal Act through Congress he said, "Philanthropy could not wish to see this continent restored to the condition in which it was found by our forefathers. What good man would prefer a country covered with forests and ranged by a few thousand savages to our extensive Republic?"
There are other crimes and scandals we could go into, but even these are slight in comparison to the amount of blood on his hands from Indian removal alone. You can't wash that stain off him so easily. This would be like describing Radovan Karadžić as a small-town doctor who gallantly defended his country (and yeah, he did some terrible things, but whatever).
I have had the opportunity to spend some time working on the Qualla Boundary of North Carolina, a reservation for the Eastern Band of Cherokee. The ATM machines dispense the same money you and I use every day, and when Cherokees make a withdrawal and collect their twenty-dollar bills, they are confronted once again with the visage of Andrew Jackson occupying this symbolic place of honor. For those who know the history, this hits them as hard as the sight of a Confederate battle flag flying over a state capitol hits African-Americans in an aching spot. Don't glad-hand Andrew Jackson. He has his place in history but he is due for a frank reckoning by history. Perhaps it is he who should share his place on our money with a woman. Considering Jackson's estimation about "savage" cultures, Wilma Mankiller might be a very satisfying choice.
Saturday, June 27, 2015
"We are under a Constitution, but the Constitution is what the judges say it is."
--Chief Justice Charles Evans Hughes (1862 - 1948)
The opinion written by Justice Kennedy in respect to the Obergefell case, about which see previous post, is something to read. So, however, are the dissenting opinions.
There has been a great deal of snarking on liberal media directed at Justice Scalia and Justice Thomas, whose dissenting opinions had fiery quotes. One easily imagines these men were seeking the attention. I will admit to some snarking myself, mainly in the creation of two social media memes:
Chief Justice Roberts's own dissent, on the other hand, gives us a quiet and orderly tour of his mind. In fact, I suspect he wrote it with the general reader in mind, and for this I give him credit.
In this PDF document, the dissenting opinions begin on page 40. Click here.The first is that of the Chief Justice.
Many Supreme Court rulings are opaque to the general reader because the arguments turn on fine points of legal theory and precedent, dense citations, and arguments using terminology with which most of us not trained in law will be unfamiliar.
With Obergefell, that opacity is not so dense, and the reader can follow arguments predicated on definitions and logic, and in some cases we get a glimpse as to how these powerful people, these Justices of our Supreme Court, define "liberty" and view power as it works in our society.
(Be reminded, these Justices are appointed to life terms. They can be impeached, but it has only happened once and that was in 1804.)
In the view of Chief Justice Roberts, the Supreme Court was snatching the issue away from the people and the democratic process, and instead acting like a legislature.
...for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens - through the democratic process - to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
This is a view echoed in other dissents - notably, Scalia's. If you are noticing a striking parallel to the "states rights" argument for slavery or for Jim Crow laws, so have I. If Roberts had the opportunity to revisit Brown v. Board of Education (1954), would he argue that this was "stealing" the debate away from the Democratic process? Would he argue that it was anti-democratic to overturn Plessy v. Ferguson (1896), a ruling which upheld the "separate but equal" doctrine and rejected a claim that racial segregation violated the 14th Amendment?
The logic on display in this dissent suggests that civil equality for groups being treated as "separate but equal" due to social prejudice should be put to a popular vote. This abandons an oppressed minority to the whim of the majority under the color of "democracy."
Roberts also expounds on the definition of marriage, articulating a view that is ahistoric and de-politicized.
The universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as the result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history...A thorough rebuttal of this remarkable dictum would fill a large book.
Deeper into the dissent, we return to the bigger issue of power here. Citing a number of legal cases and precedents, Roberts talks about the process by which the Court decides that rights that are not enumerated in the Constitution (there is no amendment saying a man can marry a man, for instance) are implied and therefore should be "constitutionalized," as Roberts puts it.
In a plea for restraint by the judiciary (let's not get crazy granting rights from the bench, guys), Roberts cites a dissent in the Dred Scott decision. This is a famously notorious case in which the Court decided that African-Americans (not even freedmen) could not be citizens, had no standing to sue for their freedom, and also ruled that the federal government couldn't regulate slavery in the free states and territories - for this violated "implied rights" of slaveholders! (Rights of property over the dignity of human beings, you see.)
He quoted from the dissenting opinion of Justice Benjamin Robbins Curtis in that case, arguing that when Justices veer from fixed rules of legal interpretation and apply their own personal feelings about constitutional meaning to guide them, "...we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean."
Do you see the contradiction? Let's break this down a bit.
It's bad for Justices to legislate their own opinions. Because then we aren't being ruled by an unchanging document anymore, we are being judged by human beings. This is legislating from the bench and it is bad.
But the Supreme Court is an institution of rule by people. They do so in the name of a document, and aspire to do so with restraint and fidelity to that document, but to argue that they are not interpreting the document is madness. The Constitution is what the Supreme Court says it is; it is rule by people, who are governed by class ideology themselves.
What Roberts doesn't see is that he is attempting to legislate, retroactively, his opinion about what marriage is. That is, an ahistoric, de-politicized, fantasy that marriage is and always has been this one particular kind of marriage, alleging "...people around the world have viewed [marriage] the same way for thousands of years."
He is accusing the majority of Justices of activism. The accusation can be judged on its own merits. But he is not acknowledging his own activism in asserting what is and what is not an implied right. The burden of proof is on people to prove they deserve civil equality; he does not put the burden of proof on those seeking to abridge civil equality.
And that, I think, is the crux of the argument about power. The democrat would always put the burden of proof on the one trying to abridge someone else's rights; yet there are those who ask, "What about the freedom to oppress?" Which is in part what led to Dredd Scott and even the Civil War, isn't it? By the 28th page of his dissent, we have Roberts lamenting that letting Sally marry Jenny either demeans those who do not wish Sally to marry Jenny, or worse, abridges the free exercise of their religion.
Roberts sighs for an apolitical court, but there is nothing apolitical about him or this institution. It is a political fight in black robes over who can presume to benefit from "substantive due process" and who may not, whether corporations enjoy the rights of persons (an idea going back quite some time), and what reforms to the powers enjoyed by the rich and established authorities may stand. The doctrine of judicial restraint is as arbitrary and fanciful as Roberts's conception of the history of marriage.
The court is an instrument of class power - as is the Constitution itself - and the Court has most often found for the powerful while enjoying aristocratic protection from democratic oversight.