As if it wasn’t enough for ruling-class warrior Neil Gorsuch to gut the National Labor Relations Act by placing the supposed intent of the 1925 Federal Arbitration Act over and above the New Deal legislation that addressed obvious asymmetries of bargaining power, Justice Gorsuch spiked the football on workers today in his 5-4 opinion by including a footnote, in Middle English no less, upholding the 1351 Statute of Laborers Act. Let me explain. After the Black Death (part one of it, at any rate) the ruling classes had far less bargaining power over the surviving peasants. All pretense of “voluntary mutual agreements” was abandoned by the ruling class when Parliament passed the 1351 law stipulating that workers were not allowed to leave their employers (the landowners or business owners) to seek better wages. Neil Gorsuch follows up in his pre-Chaucer footnote when he states (I hereby translate his words into 21st-century idiom) that “all that free market stuff was just a smokescreen, suckers. Serfs gonna stay serfs, cuz you can’t possibly afford to go to court one by one. Ain’t gonna happen. Sit yourselves down or we’ll put you in the private prison and you’ll dream of the good times when you could eat generic hamburger helper. Same as it was in 1351, same as it’s gonna be from here on out. Get Congress to change it, bwahahaha.”
The Supreme Court looks ready to crush public-sector unions with their upcoming decision in Janus v. AFSCME. Anthony Kennedy, to his credit, decided in Obergefell that “animus” against same-sex relationships was unconstitutional (though he did not, in my judgment, get to the heart of the matter by declaring that bans on gay marriage violate the 14th Amendment due process guarantee) but in the oral argument Monday in Janus he showed open animus against collective bargaining as such. Kennedy asked whether unions would have less political influence if they lose the case. Hearing “yes,” he said, “isn’t that the end of the case?” Yes, it probably is the end of this case. I hadn’t expected Justice Kennedy to go so feudalistic on us in public, but it’s a new day in Washington.
But Tony–and Neil, Clarence, John, and Sam–why not set your sights higher? The 1351 Statute of Laborers beckons. Don’t be so low energy, just trying to demolish the New Deal and return to the days of William McKinley. After the “Black Death” of 1347-1351, the workers who survived realized they had unaccustomed bargaining power. As the 1351 Statute of Laborers acknowledged, this caused “grave inconveniences” for the lords and ladies and ruling classes of the time. And so King Edward declared that “cherishing” laborers “in their sloth” was unacceptable. His Statute declared that workers could no longer move to other towns in search of better conditions, but had to stay put and keep working for pre-plague wages. (More anti-worker-freedom, anti-voluntary-transactions laws were passed in subsequent years, as the 1351 statute was hard to enforce–supply and demand, you know).
Consider yourself on notice now, Justice Kennedy. When your hometown of Sacramento, and the rest of the Central Valley, floods and then sinks and then burns and the nation’s food supply dries up and anarchy really breaks out–are you ready to set things right by bringing us back to the glory days of 1351? You won’t go squishy and start cherishing sloth, will you? But you do know, don’t you, that all your empty talk about “voluntary transactions” and “freedom” is headed for the dumpster.
Judge Neil Gorsuch is technically correct to say this afternoon that we do not live in Caligula’s world. Bad news is that we live in the Emperor Elagabulus’s world. You can look it up.
Though the “judicial branch,” which once was lost on whitehouse.gov, has now been found, it has been compromised, not in a beautiful way. For example, court-packing might be just around the corner. The number of Supreme Court justices is not specified in the Constitution, as the site notes correctly. It also notes that the current number of nine justices, established by act of Congress, has “only been in place since 1869.” Only? Ominous?
And regarding the Supreme Court, “since justices do not have to run or campaign for re-election, they are thought to be insulated from political pressure when deciding cases.” “Thought to be”–that was then.
And I am trying to remember just what Senator McConnell, Republican of Kentucky, said about President-elect Barack Obama in January 2009. Some words about making sure he would be a “one-term president,” among other words, if I recollect.
So the Senate Democrats should be at least as courteous to President Trump. Concerned that Senate Republicans will abolish the filibuster altogether? If McConnell turns the Senate into the House, and no cooling of the saucer remains, that will be on him. Trump and McConnell and Ryan own the economy along with all three branches of government. Constructive cooperation where it benefits the whole country is one thing; acquiescence, however, is not the answer, especially with the Supreme Court. Trump said women in some states will just have to drive to another state if they want an abortion.
Some have asserted that Trump in his campaign avoided insulting American citizens unless they stepped into the arena and opposed him. That’s very dubious, but be that as it may, now Trump has announced, on 60 Minutes, that he is right and millions of women are wrong–that is, women who decide to seek an abortion, depending on where they live, must go in many cases hundreds of miles out of their way. Hundreds of thousands if not millions of those women were definitely not in the arena and many of them voted for Donald Trump. It could be that some will say “Father Trump knows best” and vote for him again anyway in 2020. But if Democrats won’t filibuster Trump’s Supreme Court pick (or try to, and let McConnell be the one to go nuclear if he wants) what would they resist?
Some say Hillary Clinton is already our next President, though opinion is divided on whether she will have the authority to appoint Supreme Court justices. Therefore many worriers have moved on to the ugly possibility that Trump’s ugliness was no aberration, just part of our glide path down to lower circles of uncivil purgatory. Could 2016 turn out to be our green and innocent salad days? Could Donald Trump soon be judged as no more than “foul precursor of the fiend,” as Shakespeare put it in “The Phoenix and the Turtle”? And hello there Mitch McConnell–do you miss Jon Stewart’s imitations of you as a turtle yet? Are you going to pretend you don’t even notice Supreme Court Justices die off one by one as you while away your turtle years as Senate Majority Leader? And why are swing voters and even Democratic voters apparently not focused on the Supreme Court? As the executive and legislative branches check each other, judges become the deciders and rulemakers more and more. If Hillary Clinton wins college-educated white voters for the first time in forever, how many of these voters fancy that they can split their tickets to preserve their high-mindedness without paying the costs of gridlock in the judicial branch? And then what incentive will the Republican candidates next time around have to acknowledge that their party went off the rails in 2016? Will we get a Republican nominee smoother than Trump (low bar I know) or Pence, more clever and disciplined, who will persuade voters with his (or maybe her) vision of freedom and liberty (a potentially winning theme almost ignored by both Trump and Clinton this year)? Will President Hillary Clinton be wise enough to heed those latecomer supporters (Elizabeth Warren et al) who are not Clinton lifers but who can give Hillary cover if she is willing to go down the non-triangulation, outside-comfort-zone route of post-Occupy, post-Obergefell progressivism? Hillary’s Methodistic goal of doing “all the good we can, by all the means we can, in all the ways we can,” to succeed, will require lots and lots on non-apologetic Apologetics. As well as attention to the legitimate grievances (and maybe even some dubious ones) of the many millions of pro-Trump and never-Hillary citizens. And probably elimination of the filibuster for all judicial nominations.
P.S. When my (passionate pilgrim) Trump swears that he is made of truth, I do not believe him, because I have found that he lies.
Jesus Christ and Julius Caesar, in an unusual joint statement issued yesterday after the U.S. Supreme Court’s 5-4 Town of Greece v. Galloway decision, that the justices had completely misunderstood them. Christ was particularly offended by the Court’s implication that he would be honored by state-sponsored prayer. Caesar ridiculed the court’s abandonment of Sandra Day O’Connor’s “endorsement” test, noting that “coercion” is always already present in official governmental prayers, regardless of what Justice Anthony Kennedy says. Christ and Caesar agreed that the distinction Kennedy maintained between prayers (inadmissible) aimed at schoolchildren and prayers (innocent until proven guilty, he implied) aimed at grownups was laughable. As Jesus and Julius observed, “none of you people have really ever gotten over middle school yet, so get real about ‘coercion.'”
It seems so long ago that Mitt Romney was ridiculed for claiming that “corporations are people, my friend.” Now not only are corporations people, they are claiming to possess the perseverance of the saints. The Hobby Lobby and Conestoga Wood cases, in which for-profit corporations are asserting First Amendment free exercise of religion protection, seem beyond absurd to me, but here we are with the Supreme Court taking them seriously enough to schedule oral arguments for Tuesday, March 25.
According to the Conestoga Wood company’s legal brief, the “question presented” is whether “the religious owners of a family business, or their closely-held business corporation, have free exercise rights that are violated” by the contraceptive mandate of the Affordable Care Act. Well, if you put it that way, who would be so rude to the good country people of Conestoga Wood as to lay a burden on their religious beliefs? But I would say that is a misleading view of the question presented. As God-fearing people, to take them at their word, the individuals who own Conestoga Wood, or Hobby Lobby, can suffer, can do good and/or evil, and in general have free will as well as unlimited liability. There is, we could stipulate, no limit on the good or bad karma they can accumulate. But when a state charters a corporation, its liability is limited. That is usually much if not most of the point of the act of incorporation. Frankly, I could give a damn, as far as these lawsuits go, about the personal good or bad karma of Dick and Jane Conestoga, or Buffy and Muffy Hobby Lobby. The lawsuits asserting that free exercise of religion pertains to limited liability companies are frivolous.
If you thought the Supreme Court’s 2010 Citizens United decision was, shall we say, whimsical in its affirmation of corporate personality and free speech rights, get ready for Hobby Lobby to up the ante. The chain of arts-and-crafts stores objects to providing contraceptive coverage as required by the Patient Protection and Affordable Care Act. Their claim is that for-profit corporations have a right to free exercise of their religious beliefs. One appeals court, the 10th Circuit, ruled in their favor, citing “the First Amendment logic of Citizens United.” The federal government’s brief to the appeals court noted that “no court has ever found a for-profit company to be a religious organization for purposes of federal law.”
While Justice Kennedy‘s claim in the 2010 decision that the free flow of corporate money into political campaigns would create neither corruption nor even the appearance of corruption seemed dubious at the time and ludicrous in light of subsequent events, he has a chance to redeem himself this time. He has a chance to set fair and balanced rules of the game that apply to artificial corporate persons as well as actual natural persons. It’s simple: corporations are not just persons with free speech rights, they can be spiritual beings with religious convictions that deserve protection. OK so far? Then corporations are capable of self-transcendence and self-giving love, as well as selfishness and depravity. They can suffer, and even be crucified. But now the shoe of limited liability–so convenient for corporate well-being–no longer fits, does it? Unless the Supreme Court wants to acquit, I mean abolish, the death penalty for “persons.”
P.S. This blog takes no position on the Lutheran/Calvinist dispute on whether finite humans are/are not capable of the infinite (finitum capax/non capax infinitum).
- Court Confronts Religious Rights of Corporations (nytimes.com)
- Here Comes Hobby Lobby… (lawprofessors.typepad.com)
- Hobby Lobby supports review (scotusblog.com)
- Self and Brahman (thehindu.com)
- Supreme Court weighs new health law dispute (newsobserver.com)
- Can a corporation have a religion?: Hobby Lobby challenge to contraception mandate heads to Supreme Court (salon.com)
Curating most anything is very cool these days, I think. So why were so many of our Supreme Courters seemingly so afraid of curating our public prayers? Don’t we pay them the big bucks to settle tough issues like this?
To answer–and to get a bit serious–a little history first. Thirty years ago, the Court last undertook to rule on legislative prayer, in a case out of Nebraska, which had paid a chaplain (same denomination, Presbyterian, for sixteen years in a row!) out of public funds. Chief Justice Burger, platitudinous and conformist as ever, delivered the 6-3 majority opinion, which was heavy on legislative prayer’s “unique history,” its “deeply embedded” status and its supposed easy “coexist[ence] with the principles of disestablishment and religious freedom” (Marsh v. Chambers, 1983). Justice William Brennan‘s dissent in the Marsh case acknowledged that the “limited rationale” of the decision “should pose little threat to the overall fate of the Establishment Clause,” and averred that 20 years earlier, in a concurring opinion striking down official prayer in public schools, he himself had come “very close to endorsing essentially the result reached…today.” Brennan then wrote: “I was wrong then and…the Court is wrong today.” Not a common sight in Supreme Court opinions then or now!
Brennan’s dissent pointed out that the Burger majority opinion “makes no pretense of subjecting Nebraska’s practice of legislative prayer to any of the formal ‘tests’ that have traditionally structured our inquiry under the Establishment Clause….it simply confirms that the Court is carving out an exception to the Establishment Clause rather than reshaping Establishment Clause doctrine to accommodate legislative prayer.” What should be obvious, according to Brennan, is “that, if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause.” Brennan then set off on a lengthy explanation of the principles and purposes of “separation” and “neutrality” implicit in the Clause: guaranteeing the individual right to conscience, keeping the state from interfering in the autonomy of religious life, preventing the trivialization and degradation of religion which occurs when it gets too closely attached to governmental bodies, and finally keeping important and sensitive religious issues from becoming political battlegrounds. Justice Brennan went on to detail how “the imperatives of separation and neutrality are not limited to the relationship of government to religious institutions or denominations, but extend as well to the relationship of government to religious beliefs and practices.” He refuted the ahistorical talking point that his view of the Establishment Clause is “a recent concoction of an overreaching judiciary,” citing none other than James Madison (his post-presidential “Detached Memoranda”). Brennan concluded his dissent by quoting de Toqueville on the strikingly beneficial mutuality of the spirits of religion and freedom in the United States of the 1830s, which Toqueville’s informants agreed was due to the complete separation of church and state. “More recent history,” wrote Brennan, “has only confirmed de Toqueville’s observations. If the Court had struck down legislative prayer today, it would likely have stimulated a furious reaction. But it would also, I am convinced, have invigorated both the ‘spirit of religion’ and the ‘spirit of freedom.’ I respectfully dissent.”
That was thirty years ago. The oral argument in Town of Greece v. Galloway appears to me to signal an outcome not too different from Marsh. Those who seemed inclined to uphold the western New York town’s practice since 1999 of beginning town board meetings with prayer justified themselves by worrying about censoring speech (Kennedy, whose fetish for applying First Amendment absolutism inappropriately is getting on my last nerve), by pooh-poohing the element of coercion (Scalia and perhaps Alito), or by worrying about overturning a longstanding practice (though sectarian prayer just started in 1999–the previous town supervisor was mindful enough to begin with a moment of silence).
Justice Sotomayor got at the heart of the flim-flammery of pretending that Hindus, Muslims, Jews, and practically everybody (except atheists–though in 2013 American religious “nones” appear to outnumber all non-Christians) were all welcome to join the festivities when she got the town’s lawyer to admit that Christian clergy led the prayer on average 11 out of 12 months each year even after the court challenge began! According to the 2nd Circuit Appeals Court ruling, there was an outbreak of pluralism in 2008, with four non-Christian prayers out of twelve, and then a reversion to the pre-lawsuit all-Christian norm for at least a year and a half (Galloway v. town of Greece, 681 F.3d 20).
Regarding the curating of curates’ and others’ public prayers, I now propose a moment (or a day) of silence and mindfulness–which is only to say I hope to have more to say in a little while.
- Town of Greece v. Galloway: Legislative prayer sessions and the Establishment Clause (constitutioncenter.org)
- Supreme Court to consider religious prayer at government meetings (religionnews.com)
- The Paralyzing Premise of Public Prayer (huffingtonpost.com)
- Argument preview: Prayer’s role in government (scotusblog.com)
Just days after floundering solemnly, as only they can, through oral arguments in Town of Greece v. Galloway, the Supreme Court is persisting in its vulgar and idolatrous practice of insolently petitioning G-d to save them and the United States.
In Town of Greece v. Galloway earlier this week, seven of the nine Supreme Court justices struggled to decide what, if any, prayers, ought to pass constitutional muster in the town meetings of Greece, New York. Clarence Thomas‘s silence may well have been an endorsement of Gullah-Buddhist syncretism. Antonin Scalia, who crossed the bridge from judging to trolling a long while ago–and who has lurked under that bridge ever since–chose this week, as usual, to embody two parts Mayor Rob Ford and three parts Emperor Theodosius (died 395 CE, and who, more than Constantine, made Christianity the official church of the Roman Empire).
But the other seven really seemed flummoxed, and I sympathize. Our country is perhaps blessed with much continuity and civility in its religiosity, but it is markedly more religiously pluralistic than just thirty years ago, when the Marsh case allowed prayers to continue in Nebraska’s legislature (uniquely, in the U.S., unicameral–is this unusual unity unpleasant for unregenerate utopian unbelievers? Undoubtedly). Ulteriority, or lack of it, was the key to the Marsh decision, which approved prayers so long as “government does not act with improper motive in selecting prayer-givers or exploit the prayer opportunity to proselytize, advance, or disparage any one faith or belief.” Some of the justices, e.g. frequent swing voter Anthony Kennedy, seemed reluctant to dive into the mudpit of “parsing prayers” this time around, but what is their alternative? One week of prayer for the monotheists, and then as many weeks for the polytheists as they have deities? That would be just as sensible as some of the proposals put forth in oral argument. Decision expected by next June.
- Analysis: At Supreme Court hearing, passions over religion and its rules – Reuters (reuters.com)
- Supreme Court Justices Consider New York Town’s Prayer Practice (nytimes.com)
- Say a Prayer for the Supreme Court (slate.com)
- Argument recap: Marsh’s demise or its renewal? (scotusblog.com)
- Argument preview: Prayer’s role in government (scotusblog.com)
- Legislative prayer returns to the Court: In Plain English (scotusblog.com)
- Did A Supreme Court Justice Just Admit To Being An Atheist? (huffingtonpost.com)
As the Supreme Court, shutdown or not, begins its new term today, the remaining pragmatic precedents from the O’Connor era are likely to be narrowed if not swept away. And if you thought Citizens United gave too much leeway to big money in politics, get ready for McCutcheon, which may overrule all campaign contribution limits by individuals.
As per usual, Justice Scalia sees the big picture (from an interview with New York magazine): “the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot.” Is our man Scalia being one-sidedly rude to his fellow right-wingers here? Certainly not, for he proceeds to attack godless liberals next: “what he (the Devil) is doing now is getting people not to believe in him or in God. He’s much more successful that way.”
Would I make that up? No way, it is a true story–just it is not the John Roberts who happens to sit on the Supreme Court.
- Justice Ginsburg to perform same-sex wedding (seattlepi.com)
- Ginsburg to Be First High Court Justice Performing Same-Sex Marriage (advocate.com)
It is not hard to imagine some Supreme Court justices pleased as punch with the new vote suppression laws in Texas and North Carolina. They are 1877 lite, and at least four justices seem fine with the latter-day return to rules that make it harder for the wrong kind of people to vote. North Carolina Governor Pat McCrory expressed this pretty transparently in a radio interview with WUNC today when he compared the voter identification bill to measures that require identification to collect public benefits such as food stamps. Hard to speak in racial code any better than that. The governor also said “I frankly think our right to vote deserves similar protection that we’re giving to Sudafed.” I frankly think Scott Walker of Wisconsin, Rick Scott of Florida, and Rick Perry of Texas are all nervous that you, Pat McCrory, might outflank them on the far right edge of political discourse.
More important–assuming a stable lineup on the Supreme Court–is whether Anthony Kennedy will be concerned enough about how he is remembered fifty years from now to climb down from the perhaps well-intentioned but–if so–politically naive decisions in Shelby and Citizens United. President Obama and Attorney General Holder can do quite a bit to mitigate the vote suppression efforts that began within a couple of hours after the Shelby opinion, but, Justice Kennedy, only you can decide the historical role you will pay in making the right to vote real, or not.
- North Carolina Gov. Pat McCrory signs voter ID bill into law – @newsobserver (newsobserver.com)
- N.C. Gov. Pat McCrory Defends New Voter ID Law (wnyc.org)
- NAACP, lawyers ‘enthusiastic’ about challenge to elections law (wral.com)
- 92-year-old black woman sues just hours after North Carolina gov. signs voter ID law (rawstory.com)
- Justice Kennedy Has To Answer For North Carolina (esquire.com)
Some commentators have followed a familiar path of least resistance in interpreting the major Supreme Court rulings of yesterday and today. David Leonhardt of the NYT, for example, achieves superficial false-equivalence-correctness by tweeting: “Dems yesterday: The court should not overturn a bipartisan law. Repubs today: The court should not overturn a bipartisan law.” Leave aside the happiness I imagine plenty of Republicans (Ted Olson, for starters) feel today. The Court has the power of judicial review, but ought to use it wisely, to resolve actual cases and controversies on the basis of upholding the Constitution, especially its guarantee of equal protection of the laws regardless of majority opinion. The Voting Rights Act has been a powerful, landmark law to redress very real grievances and overcome horrible centuries-old injustices. It is obtuse and childish to equate it with the so-called Defense of Marriage Act, which had no such noble purpose in 1996–you can watch John Lewis’s anti-DOMA speech from 1996 on YouTube demolishing it on civil rights grounds–and looks utterly ridiculous now to most young Americans. Perhaps the Voting Rights Act could use tweaking and updating, but Chief Justice Roberts was way out of his depth in dismissing the legislative renewal of 2006 as senseless. And no one paying attention could equate Justice Ginsburg’s pointed, forceful yet civil dissent with Justice Scalia’s ugly and abusive trolling.
There may well be equivalence among politicians, bureaucrats, and, yes, all of us in that we seek either reelection or reconfirmation of our existing opinions. The gay marriage decisions today will, as time goes on, appeal to a wide majority of Americans because they affirm core parts of our self-image and self-understanding: Justice Kennedy affirmed the “equal dignity of same-sex marriages,” though without, yet, invalidating the indignity nationwide. To use a Civil War term, he was not ready yet to make “freedom national.” But the rapid momentum toward legal, civil equal treatment is clear, and the main lines of the decision are relatively clear and clean. Not so with the impatient, tortured, Panglossian lameness of Justice Roberts’ majority ruling gutting the Voting Rights Act. Benjamin Franklin, archetypal American for many, termed his youthful sins mere “errata.” We might like to take up Justice Roberts’ invitation to reduce our historical stains to errata. Our real history, though, contains some awful messes. If we pretend otherwise, do we really make it easier to clean up and move beyond the messes?
The reflexive pox on both your houses mindset is an easy default position–but in this case very hard to defend with detailed and informed historical or moral arguments.
- Richard Posner Calls Chief Justice John Roberts “Disreputable”… (delong.typepad.com)
This is an unconfirmed report. Paula Deen, after listening from a VIP seat in the Supreme Court to Chief Justice Roberts read his opinion today in the Shelby case, applied and was immediately accepted for a job clerking for the Chief Justice next term. It was and was not so that she also renounced her earlier apologies and rebooked plantation style wedding plans for her brother.
Hat tip to tomorrow’s issue of the Onion.
This year’s gambit by the so-called conservatives on the Supreme Court to invalidate the Voting Rights Act may or may not succeed. If it does it will make a sorry mess for several reasons. The argument that states must be treated equally based on Article IV of the Constitution and the Tenth Amendment is ignorant, trifling, and unhistorical. States are guaranteed proportional representation in the House, equal representation in the Senate, and protection against foreign invasion. The Tenth Amendment is not revoked by the post-Civil War Amendments outlawing slavery; guaranteeing due process, equal protection of the laws, and the privileges and immunities of citizenship to all Americans; and guaranteeing the right to vote (though not yet to women)–but it is qualified and placed in a new light. The Thirteenth, Fourteenth, and Fifteenth Amendments all explicitly gave Congress “power to enforce…by appropriate legislation.” If that did not relativize the Tenth Amendment what would? Moreover the reentry of states that had seceded back into the United States was contingent on acceptance of the Reconstruction Amendments. It took another one hundred years after the abolition of slavery until the Voting Rights Act of 1965 was signed by President Lyndon Johnson. This law finally “shifted the advantage of time and inertia from the perpetrators of the evil to the victims,” as Chief Justice Earl Warren wrote in his 1966 Katzenbach opinion upholding the Voting Rights Act as a valid exercise of Congressional power to enforce the Fifteenth Amendment.
Section Five of the Voting Rights Act does not treat all states equally, which because of the history involved is not necessarily the same as inequitably. It constrains several Southern states, as well as Alaska, Arizona, the Bronx, Brooklyn, and Manhattan. Several towns in New Hampshire were recently allowed to “bail out” of the Section 5 “preclearance” portion of the law. Those towns had imposed poll tax requirements in the past. But the core impact of the Voting Rights Act was and is in the former Confederate states, where some have complained, sometimes accurately, that “we have repented, and we have reformed.”
Lincoln said in his second inaugural address that all knew that slavery “was, somehow, the cause of the war.” We all know that the issue now is whether the un-conservatives on the Court decide, against the near-unanimous voice of both houses of Congress, expressed repeatedly since 1965, that it is time for “happy forgetting.” Harald Weinrich, in his remarkable work Lethe:The Art and Critique of Forgetting, follows Freud in distinguishing between “unpacified forgetting” and “pacified forgetting.” For Weinrich the path from unpacified forgetting to a post-therapeutic pacified forgetting relies on the art of memory as a necessary auxiliary in the process of working through (pp. 132-36). And Paul Ricoeur, in his Memory, History, Forgetting, writes of an ars oblivionis, a happy forgetting, that could become a double of ars memoriae, happy memory (p. 412). But Ricoeur is “troubled by an excess of memory here, and an excess of forgetting elsewhere, to say nothing of …abuses of memory–and of forgetting” (p. xv).
Is this Supreme Court really best for the task, or up to the task at all, of judging “the just allotment of memory” (Ricoeur, ibid.) in this case? It is more than just another case. It might be best if they were a little less eager and sure of themselves here. When John Roberts informs us that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” he demonstrates an admirable grasp of tautological logic but probably an unsure sense of the complex history involved. Antonin Scalia, remarking on the lopsided vote to reauthorize for 25 years in 2006, said at the oral argument that the near-unanimity was evidence that this “is not a matter that can be left to Congress”! Is the bottom line here that the Court is going to invalidate the law that, warts and all, finally gave Americans of all races effective and real suffrage–on the ground of peevishness? Because Congress failed to jump after the Northwest Austin decision less than five years ago? They could just come right out and say: section 2 is good enough for you people, don’t even think that you deserve the advantage of time and inertia anymore.
- How to judge the Supreme Court’s upcoming equality rulings (constitutioncenter.org)
- Future of voting rights up in the air: In Plain English (scotusblog.com)
- Voting is not a right (salon.com)
We learned from the movie Ratatouille that anyone can cook. Even a rat. But can anyone rant? There seems no shortage of rant-like behavior, but how often do we witness an example that does justice to the original Ranters (see 17th-century radicalism, England). Justice Antonin Scalia, to give credit where it is undeniably due, may or may not be able to cook, but he delivered a fabulously compelling rant/dissent Monday that left Anthony Kennedy wearing just a dungbeetle-chewed leaf. When everyone from USA Today to The New York Times to The American Spectator thinks Justice Kennedy is either acting in bad faith or clueless (clueless seemed the consensus in re Citizens United), there are grounds for hope that the dissent was not merely a fine rant, that our cultures and our “the culture,” our pluribus and our unum so to say, are not utterly desensitized to the blessing, costly as it is, of presuming innocence. The four voices in the minority Monday may find allies in interesting places. Scalia’s often troll-like rhetoric hit the mark this time, in keeping the wound caused by these 21st-century general warrants rubbed raw.
Sobering update re general warrants via Guardian: Verizon and quite possibly all the other carriers are giving the NSA metadata on “millions” of customers
Mouthpieces of Google have reportedly assured us that Google Glasses will be incompatible with pornography and facial recognition apps, even though Larry Page, cofounder and CEO of the company fantasized at their annual developer conference in May of finding an island where he and other Burning Man alums could just be their non-incremental selves, free of any regulations. May we not hope that in such a fine place the chasm between Enlightenment and Romanticism could be bridged once and for all. That corporate personhood would embody such perfect goodness and love that all fear would be cast out so that limited liability would be cast aside and that the corporate mouth would voluntarily open wide to be gently and nonintrusively swabbed, but only for proof of concept, never merely to solve any unsolved crimes.
The fifth and last of Euclid’s “common notions” underlying his axioms and proofs is that the whole is greater than the part. Sadly five justices of the Supreme Court violated this baseline today by opening wide the door for coerced DNA sampling of persons arrested but not convicted of a crime. It would be a great day if we could solve unsolved cases, and bring some measure of relief to families and friends of victims, without paying a price in lost civil liberty. But we can’t. The “whole” in this case was the presumption of innocence. The majority today lost sight of that greater whole and wandered off into a scary non-Euclidean space.
Update (6/16): Having read on p. 101 of Maurice Merleau-Ponty’s Nature:Course Notes from the College de France that “Non-Euclidean spaces teach us that Euclidean space is not a de facto privileged structure. It is not the only real space among all spaces,” I hereby apologize to non-Euclidean spaces and all beings living therein.