Tuesday, June 30, 2015

Old Hickory Was A Butcher

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

What the Chief Justice Sees, and What He Does Not

"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.

Friday, June 26, 2015

A Long National Embarrassment is Ended

Whether you analogize it to a thunderbolt of justice or simply a final domino falling, the sound was loud and clear and shook the firmament today.

The Supreme Court of the United States issued a ruling in the case of Obergefell v. Hodges. The majority opinion, written by Justice Anthony Kennedy, bars any state from enforcing bans on marriage between two adults of the same sex or failing to recognize such marriages licensed in other states, under the 14th Amendment to our Constitution.

Justice Kennedy also wrote:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

I'm given to feeling awfully jaded in these times but a tear is in my eye as if a long, painful embarrassment and a lingering personal injustice is lifting - and I'm suddenly out of reasons to doubt it will happen (even though I've been saying it was inevitable for years). Our sad, suffering country looks up and today, on one divisive issue, sees a rainbow. I'll watch through the window for signs of the seven plagues but I think rather this is a day for us to let go and celebrate a measure of equality and decency.

Disparagement of homosexuality will remain, but is now relegated to the sphere of personal opinion without the endorsement of the state. There will be angry feelings and dire predictions of perdition - but it is a good day when an official stigma is toppled like the statue of a hated dictator and replaced with the open air of civil equality.

One complaint that was often aired by people uncomfortable with The Gay has been that marriage would somehow be diminished or diluted as an institution if people of the same sex were allowed to marry. If anything, I felt the opposite was more true: not that my marriage itself was degraded, but that by enjoying the rights of civil marriage, I was "more equal" than my fellow citizens, that I was enjoying rights that were actually privileges, from which other human beings worthy of love and good will were rudely excluded. I claim no victimization here, but it is a relief to have that one stain expunged at last.

I remember performing a wedding in Providence, Rhode Island that was attended by friends and teachers, Brian and Stephen. At the reception they played that game where the couples took the dance floor and the DJ called out, "Keep dancing if you've been together 5 years..." and some would clear off and it continued. Ten years. Fifteen years. Twenty years. Guess which couple made it to the final three. (The final three included a couple that had been married for fifty years.) That's right, the couple who could not get married in the state where they lived. The stupidity of it was appalling. I asked Brian if he thought about taking Stephen over to Massachusetts and getting married and with a steely dignity Brian said, "I would like to get married in the state where I have lived and worked almost my entire adult life." I thought of him the day I was married.

The country's judiciary has finally put an end to one grotesque and stupid injustice. One step, but a big one in terms of our maturity as a nation, a step in the direction of a greater union.

Let us rejoice and celebrate, like we would at a wedding.  And then we keep going, because we dwell in a garden where there is plenty of injustice to root out so the crops of justice, democracy, and peace can one day flourish.

Saturday, June 20, 2015

On the Firesign Theatre

One of the greatest gifts my parents gave was introducing me to the work of the Firesign Theatre.

My parents had a sweet way of sitting me down and saying, "We are now presenting to you something very important because we feel you are ready," and then we would watch an episode of Monty Python's Flying Circus and they would ask me what I thought. They also sat me down by my father's bulky old record player and introduced me to the Mothers of Invention.

It was the same way with the Firesign Theatre. I was an adolescent but don't remember the exact year. They sat me down, said "Listen to this, just listen," and played me Side B of the Firesign's album How Can You Be In Two Places At Once When You're Not Anywhere At All. An excellent choice for the uninitiated, this was their famous pastiche of radio noir drama, the first-ever episode of "Nick Danger: Third Eye." Since the listening was going pretty well, my parents poured me a coke and flipped the record over to Side A of that unforgettable album.

This was legally as close as my parents could have come to simply dropping acid with me.

But that's a joke. Good art should not be casually likened to recreational drug use. The superficial comparison is that listening to this (which I did repeatedly thereafter) opened up my imagination to what was possible, what could be done with words and sound, and how a story could be constructed. Comedians make you laugh; this was more than that.  This album combined ingenious writing and inspired improvisation edited into a genre-busting "comedy" album emulating stream of consciousness while being as rich and exhilarating as a Pynchon novel.

They began in radio in Los Angeles during the 1960s, improvising radio programs and television commercials, and recording several albums that are iconic for fans of the group, weaving satirical narratives around zany characters, lampooning political figures, media, human relationships with technology, and more. The albums contained references to one another and some characters were recurrent, creating a whimsical universe. Their fourth album, I Think We're All Bozos On This Bus, exemplifies how they burst through the limits of genre with a first-rate science-fiction tale about technology, history, and intelligence both human and artificial. (In one of its unforgettable moments, a robot President Nixon gets hacked by the protagonist.) I feel great affection even for their albums that were more chaotic, like Not Insane.

The Firesigns (the four members of the group all claiming fire signs in their astrological profiles) were exceptional writers, voice actors, and improvisators. Their full discography and their various solo ventures are well documented elsewhere. Sometimes it feels as though their following is a hidden community. It is fun on occasion to throw out one of their unmistakable catch phrases ("He's no fun, he fell right over") to see if anyone recognizes it.

They are artistic heroes to me. A few years ago, I was informed that an audio play I had written would be performed at a festival and that Philip Proctor, one of the Firesigns, was likely to be one of the actors. I was beside myself - one of the most exciting days of my life. Unfortunately, the festival reneged and my excitement was crushed. (The beginning and the end of my association with the National Audio Theatre Festival.)

I am writing this because yesterday I learned that one of the members, Phil Austin - the voice of Nick Danger among many other characters - has passed away and so moves "forward - into the past." He was involved with the Center Theatre Group in Los Angeles in its early days and worked at KPFK, where he got involved with the other members of Firesign.

He joins Peter Bergman, the delightfully mad Yale economist turned playwright who created a radio program on KPFK that convened what became the Firesign Theatre. Bergman passed in 2012.

In the photo above, Bergman and Austin are both to the right. Younger in that photo than I am now.

Now there are two left: Proctor, who has had an impressive career as an actor, voicing characters in several Pixar films and other projects; and David Ossman, who has continued to do a lot of audio theatre (including programming for children) and other radio production.

In my zen school we chant "Ji Jang Bosal" for people who have passed. I cannot help fanciful notions of the bodhisattva joining them in a vehicle purchased from Ralph Spoilsport and all of them ending up in the Land of the Pharoahs, discovering a hotel inside a giant pyramid, and so on...

It's never too soon to thank the people who have inspired you, if you have the opportunity. And I certainly intend to maintain my parents' tradition of introducing my own sons to cool things. I think of listening to Waiting For The Electrician with them and a smile comes to my face.

Friday, June 19, 2015

My Letter to South Carolina

It's not great. It was written in a hurry. But it's a message that somehow has to penetrate, lots of people better than me are trying, and here is my own spoonful of effort towards reconciliation.


Hon. Nikki R. Haley
Office of the Governor
1205 Pendleton St.
Columbia, SC 29201

Dear Governor,

This week you are hearing much from the entire country about the significance of a confederate flag flying on the capitol grounds of South Carolina. It is not a new controversy, but has flared like an old wound (and so it is) in the wake of the murder of nine people at Emanuel African Methodist Episcopal Church in Charleston, an attack carried out by an open white supremacist.

It can be argued ad infinitum that the flag is benign, that it has no causal connection to what occurred in an historic African-American church in Charleston, and that we can look away from any cultural culpability because surely this perpetrator must be insane.

These exercises in deflection do not spare South Carolina and you from the responsibility to consider what the presence of this flag means for those grieving in Charleston. A person strongly devoted to white supremacist ideology murdered African-American people at an important historical site, and the flag upholding this ideology (there is no evading this – must I quote the Cornerstone Speech outlining the founding principles of the confederacy?) continues to fly on the grounds of the state capitol implying some official recognition of that flag and what it stands for. It is an astonishing affront to those whose lives are lost, and those who truly mourn them.

The place for the flag of the confederacy, the flag of secession, the flag of a union founded on the principle that “the negro is not equal to the white man,” is a museum. The place for it is not the capitol grounds of one of the United States of America. This vain display of defiance is a tacit endorsement of the disunity and white supremacy for which it stood from the beginning.

In the wake of this mass murder, comparable to the bombing of African-American churches in Birmingham and numerous other attacks that have taken place in places where African-Americans worship from the present day spooling backward generations into our past, it is time for an unambiguous sign of unity with a nation in mourning. Take it down. Do so with respect; not with shame, but as an embrace of the entire nation and a new conversation about the social fabric of the United States. The confederate flag is a powerful historical artifact and belongs in a museum. Take it down. Do so, not least, as a sign of respect and an unmistakable rejection of the massacre in Charleston. Take it down, and put it back up in a museum of history.

What is asked of you requires some political courage, no doubt, as the embrace of this flag is a matter of strong passion for many in your state. As an embrace of national unity, however, the response from the entire nation would be tremendous and South Carolina, and her governor, would be celebrated for a simple action that would change our conversation about race, union, and American identity. Why hold yourself back from that historical opportunity? How often will you have an opportunity to melt discord and anger into tears of national reconciliation?

From my patch of these United States I will be watching in hope that you will do what needs to be done.

Most sincerely yours,