First of the Month

Bad Faith

Wed, 08 Jun 2005 11:55:39 -0500

Start with Katha Pollitt. In the April 18 issue of The Nation, she unsurprisingly holds forth (unsurprisingly) on the controversy surrounding Theresa Schindler Schiavo. She comes down, of course, on the side of pulling the tube (or as she nicely says, "Schiavo's feeding tube was withdrawn"). There's no real argument offered, but she makes it clear that she's not happy with what she sees on the other side:

The Terri Schiavo freak show is so deeply crazy, so unhinged, such a brew of religiosity and hypocrisy and tabloid sensationalism.¹

It's all there. Contrary arguments are "crazy" and needn't be engaged. Religion is religiosity." Hypocrisy is this: juxtapose two facts, assume dishonesty, and you're set. Tabloid sensationalism is the other guy discussing a hot story; what Pollitt does is "debate."

She names names:

"I don't believe they [the antecedent is "Americans"] want Tom DeLay to be their personal physician."

Now, it's easy to imagine Tom DeLay, the Hammer, threatening, twisting arms, browbeating, calling in favors, forcing a bill through by one or two votes. But here, DeLay does not get paternity. The Congressional act ordering Federal judicial review of the case passed the House overwhelmingly, and the Senate without a single vote against. DeLay matters that much to Pollitt, not because he matters that much, but because she knows her audience. Medical questions come up in Congress all the time (Medicare, research, V.A. hospitals): can't any member of Congress be derided as "personal physician?" Better to save the sneer for the declasse bug-squasher from Texas.

Newt Gingrich makes the list. His offense was to call Ms. Schiavo by her first name. Such informality is something she claims "they" (Americans) don't want. But Gingrich himself is more often spoken of in public by his first than by his last name. And Pollitt herself - who only wants the woman dead, after all - feels free to call her "Terri."

And Senator Frist, she goes on, has "diagnose[d]" [Schiavo] by video."

Granted, Frist is a politician, making political points, and may deserve some distrust. But he is a practicing doctor (or in Pollitt's pompous preference, "physician"), and doctors can make diagnoses without being in the same room as the patient. Frist's diagnosis may be wrong, but it will take more than the word "video" to show that it is. ²

Jesse Jackson's there, too. A lot of The Nation's readership swooned for him when he ran for President in 1988; and a lot of that readership swooned for Ralph Nader in 2000. Jackson and Nader were on the same side here - they spoke up for prolonging Ms. Schiavo's life. In Pollitt's cropped picture, only Jackson is allowed to appear. She couldn't squeeze Nader into the "religious left" (scare quotes in original), or convincingly have him "pop in for a prayer." This was all about religious zealotry, and the many people on that side of the question who clearly had nothing to do with religion - in Pollitt's world, it just can't be.

And Randall Terry was guaranteed to show up, outside the hospice, and inside the column. A comparison with the Rev. Sharpton may be useful. Not even he expects everything he says to be taken seriously. Some causes he's embraced have been hoaxes. Some have been very real. Families that have lost someone to a mob or a police shooting have turned to him. He's the guy that's there for that kind of thing. You may question his motives or the families' judgment, but about the merits of each case, you know nothing up front. Pollitt throws out the name Randall Terry, who is a guy for this other sort of thing. Pollitt knows nothing up front, and she won't learn.

And there's Pollitt's find: "Scott Holdreth, a convicted sex offender who told an A.P. reporter that driving long hours to the hospital and getting arrested was all his 10- year-old son's idea. The least of it first: "all his 10-year-old son's idea." The word "all" conveys Pollitt's disbelief adequately; but it doesn't begin to justify it. What, at all, does she know about the man and his son and any conversations they ever had? "Convicted sex offender," though, is the supposed scoop. What kind of sex offender? One thinks immediately rapist. If he was that it was inept not to say so. If it was something less, it was less than honest not to specify. And what is this "sex offender" doing in Pollitt's column? Does she mean that he was typical of people outside the hospice? Should public demonstrations run background checks on participants, because a rap sheet or two invalidates the whole thing? At a time when the voting rights of felons are hotly contested, Pollitt has taken an extreme position: felons - assuming Holdreth is a felon - shouldn't have the right to an opinion.

For Pollitt, the Schiavo case is tied up with abortion. The connection is rather fanciful. She claims that the starving of and denial of water to Schiavo is a metaphorical abortion (and abortion is sacrosanct). But anything can be a metaphor for anything, as she would understand were she a less pedestrian writer. There is also some slippery-slope sentiment at work in her piece. Let the "religious right" and "its Republican friends" (i.e. the overwhelming, bipartisan majority of Congress) have their way on this, and it's on to a regimen of compelled pregnancies, of "mak[ing] women pay for sex with childbirth." (That Karl Rove, he plays a deep game of chess!) Sometimes this will lead to that, but not always, and not here. People are capable of making distinctions.

Pollitt even shows us people making distinctions. She notes that Tom DeLay took his father off life support and that Robert Schindler (Theresa Schiavo's father) took his mother off life support. Here, she intimates, is proof of hypocrisy. It is no such thing. Putting DeLay's name first was supposed to cinch it. Delay knows that pulling the plug is the right thing to do. Stringing the yahoos along here is to his political advantage. Robert Schindler is not a politician. But in Pollitt's logic, if DeLay is a proven hypocrite, so must Schindler be.

But, like people, let's make distinctions. The cases are not the same. Theresa Schindler Schiavo was never on life support, and this was never a right-to-die case. Suspect DeLay all you want (as long as you don't pretend to know). But Robert Schindler's willingness not to stretch out his mother's life lends his campaign here more credibility. That campaign was not the fruit of abstraction. Years spent with his daughter told him this was a life worth saving, a life necessary to be saved.

The particulars of the case, though, are of no interest to Pollitt. The woman at the center of the case gets the heave-ho from Pollitt, who just wants to talk about the usual villains and "John Q. Public" and "Cousin Jim," and Americans in general, helpfully defined in her second sentence as the people who "tell pollsters the earth was created in six days flat³ and dinosaurs shared the planet with Adam and Eve." And just about dead center in her piece, and the thing she really came to say is this:

"It's about time Americans woke up."

Theresa Schindler Schiavo had little chance of waking up. Little wonder, then that Pollitt would consign her to cinders with so little concern.

In the ordinary run of things, an article by Katha Pollitt would be a thing apart from any serious consideration of an issue. Here, however - and it is a disturbing thing - some of her attitude seems to have spread to others. The case for starving Theresa Schindler Schiavo went like this:

Terri Schiavo died 15 years ago. Her family, i.e. her husband, has cared for her during that time and has sought to effectuate her wish not be kept on life support. Other relatives have interfered. Nevertheless, courts have, in carefully crafted decisions, ordered that her wishes be respected. Recently, the Evangelical Right - a nascent theocracy - has mobilized around this non-issue. The Republican Party has signed on.
Justice prevailed, of course,. But the judiciary has become a target: its independence is threatened, and the physical safety of judges is at risk. Theocracy still looms.

It didn't happen that way, though.

The question whether it is legitimate to cut a life short - what's come up in right-to-die and assisted suicide cases - was not at issue here. The disagreement was less over legal principle than over Ms. Schiavo's condition. The justifications for speeding someone's death are basically these.

1. Death is inevitable and will come soon. If someone is allowed to die in one hour, instead of a day, or in a day, instead of ten, no harm has been done. Ms. Schiavo could have been sustained indefinitely.

2. The patient is in great pain. Ms. Schiavo had none.

3. The most discomfiting, and probably the commonest: Long-term and/or intensive care for a patient will work the financial ruin of a family. Here, the Schindlers were willing to cover the expenses (and there was money remaining from a judgment earmarked for Schiavo's long-term care).

Michael Schiavo, it was frequently said, proposed to take his wife off life support. She was not on life support. She was being fed through a tube. There were no machines performing organs' functions. "Life support" may be defined expansively, of course. But anyone with an oxygen tank, a pacemaker, an ampule of insulin in the refrigerator, an appointment at the dialysis center needs to be wary of such expansion.

There was nothing reassuring about Michael Schiavo. In the role of the devoted husband - his required role - he was not at all credible. (In the Lifetime movie of the week, who could play him? Tom Sizemore? Michael Madsden?) It's well-known, and apparently regarded as unimportant, that he lived with another woman whom he wanted to marry, and with whom he had two children. His wife was an obstacle - the only one - to his happiness, such as that was. Ending her life also made all her property his. Somebody who was a fiduciary for even $500 of somebody's money would be disqualified for far less. He, and he alone, was called "the family." Her natural family, against whom there were no claims of a conflicting interest, were treated as undesirables. ⁴ "Her family", i.e. her adulterous husband, swore that he was only carrying out her wishes. ⁵ It's true that she never said it in writing, in the form of a living will. Ultimately that absence wouldn't matter. On tv, it was often said that this was useful reminder, that everybody needed to see a lawyer right away. Most people would say, I think, thanks. Katha Pollitt, in her fatuous way, says that the young don't think to write out living wills. She has a living will, or means to get one; and the rest of the population is now on notice.

But no, according to Michael Schiavo, she said she wanted to cut things short. This, he alleged, happened after she saw a movie on tv about somebody on life support. Now, it happened that I had finished watching the first three seasons of Curb Your Enthusiasm just before the Schiavo story took over the news. Larry David is unusually fond of funerals as settings (true of many Seinfeld episodes, too). "Clear your mind of cant," said Samuel Johnson, and Larry David is here to expatiate. There's a very narrow range of what may be said in certain settings e.g. in the presence of the dead. If you hear of someone being horribly mangled, and more so if it's a presented in a movie, consider two responses. The first is the heartless, technocratic, unfeeling, unempathetic one. It talks about prostheses, wheelchairs, adjustment to a diminished life, reconstructive surgery. It sounds robotic - and it may be the only useful thing to be said. The other is the sensitive, caring, all-heart, ostentatiously human one. This is terrible. And I feel it deeply. I would stake my own life on it. Just kill me! An oral statement is not equivalent to a written authorization. The writing may reflect the author's wishes, but that is secondary. It confers a right on some other person, and how the author felt about it all is not of too much interest. It is surprising that a vacuous remark about a movie could be mistaken for the expression of anyone's deepest, most considered wishes; astonishing that it could be the basis for a death sentence.

Remember, too, that the alleged expression was fifteen years old. People can change their minds with time, and if they do, they can always tear up a document, or write a different one. A casual remark, which they are unlikely even to remember, how might it be revoked? Or consider this scenario: A candidate for a fellowship far excels any other candidate. But it is learned that when he was five, he said he wanted to be a cowboy when he grew up. The fellowship is denied him, for fear that he'd run off with the rodeo.

And the witness to the statement is Michael Schiavo, the most conflicted man in the world. Did she say it? Had he disclosed such a statement while he was seeking damages for his wife's condition (and making sworn statements to get those damages), he would likely have been awarded far less. Award in hand, Michael Schiavo came to regret his selfish desire to give her long-term care and hopes for rehabilitation. He would do the right thing: see her dead, and the quicker the better. ⁶

How explain (but not justify) the result? Trial courts are not commissions of inquiry. They adjudicate differences between this party and that. A Michael Schiavo, comes to court for permission to terminate his wife, seriously damaged, and unlikely to recover. He throws into the mix an alleged statement by his wife giving the go-ahead. The probate judge could go along, or declare the testimony perjurious - on what proof? - and tantamount to attempted murder (a subject outside his jurisdiction). The Schindlers, for their part, could not rebut Schiavo's claim: they weren't there. And appellate courts - they weren't there, either, in the courtroom - are barred, in just about every case, from upsetting findings of fact. The advocates for Terry Schiavo's death have rested a lot on Michael Schiavo's string of court victories. He hasn't been proven right again and again, only won a single dubious judgment, that inertially replicates itself.

Ms. Schiavo's death has had a lot of sugar-coating. After her starvation had begun, the media continued to talk about the hospice "where she was being cared for." Katha Pollitt complained about the "fanatics moaning [!] and praying outside the hospital while they [Pollitt's conception of plain folks] 're making hard decisions." The "hard decisions" made here were, of course, harder on some people than on others. And nobody was "making" hard decisions. Those decisions had been made long since and were being pursued remorselessly, with no evident agonizing or hint of a second thought. This was what she wanted, it was insisted. People want quick deaths, not two weeks (an index, by the way, of her vitality) without food or water. She felt nothing, yet she was given morphine. George Felos, Michael Schiavo's lawyer, and author of Litigation as Spiritual Practice, described her as "peaceful" and "beautiful." Dante, a somewhat more consequential poet than Katha Pollitt, has some lines on starvation. In Canto XXXIII of The Divine Comedy, Ugolino describes the death of his children

Pianger senti fra 'l sonno i miei figliuoli dimandar del pane
I heard my sons cry from out their sleep and plead for bread

E se non piangi, di che pianger suoli?
And if you do not weep, when will you weep?

When will you weep? Not, apparently, if the politics are not in order. There was nothing inherently left/right about the case. Conservative Republican judges ruled for Michael Schiavo. Politicians like Barney Frank opposed those rulings. (Pollitt: "The Dems 6 who mostly cowered.") Disability activists, from Not Dead Yet, were prominent outside the hospice (Pollitt: "freak show"). It was true, though, that most of the Right stood with the Schindlers. That was enough. In the mindlessness of Nation-style politics, it's always, "Gimme none of what he's having." The rulers of Afghanistan, Iraq, Sudan, whoever, wherever will be taken under a protective wing, and cooed over. The insurgents are doing just fine in Iraq and Michael Schiavo is Father of the Year. When Pollitt says that Jesse Jackson "seems not to have gotten the memo," she- altogether by accident - says something true.

The support of many religious people for the Schindlers won Michael Schiavo many adherents. There's a lot of talk of the Religious Right, "Christianists," "fundamentalists" (the moral equals of a Zawahiri), theocrats. Such could be found outside Theresa Schiavo's hospice. The larger crowd looked different.

The most noticeable group there - apart from the wheelchair-bound - were Roman Catholics, who are hardly evangelicals. For purposes of polemic, the Catholics were wished away. The evangelicals, for present purposes, made a better target. But there was nothing necessarily religious about wanting to spare Theresa Schiavo, and a number of people taking her side made a point of their absence of religious belief.

But grant (as you shouldn't) that religion was central to the Schindlers' position. So what? Abolitionism and the civil rights movement, it will be acknowledged came out of the churches. And, more recently, the toppling of the Taliban (Stop Bush's War on Women!) and the liberation of Iraq were preceded by many a prayerful hour at the
White House. This kind of thing is often found: A cleric who denounces an execution speaks truth to power; a cleric who denounces an abortion imposes religion. To raise the religious objection, as in the Schiavo case, is to reverse the order of argument. You must prove a position wrong before you can criticize its etiology - a separate argument to be made. There is no neat distinction between religious thought and other thought. Until recent times, the same people who did theology also did philosophy. Such fields as ethics, politics and anthropology were understood within a religious context, and they are not thereby any less philosophy. Take Hegel, if you will. His early writings were theological, and, famously, he made up part of the curriculum at divinity schools when Martin Luther King Jr. was studying. Even his more secular works are not innocent of religion. If Hegel is in hell, it might be for cheating the Holy Ghost of royalties.

A secular legal order is something all but a tiny minority believe in. A legal order purged of anything shared with religious tenets (Thou shalt not steal?) is not to be had, and not to be sought.

Late in the day, the legislative and executive branches of the United States combined in an effort to save Ms. Schiavo's life. They bumped into the Federal judiciary. That judiciary is a hot issue these days. Let's go into it. In 1803, in Marbury against Madison, John Marshall threw out a case brought under a Congressional act that purported to expand the original jurisdiction of the Supreme Court in violation of the plain meaning of Section 2 (2) of Article III of the United States Constitution. What is not plain anywhere in Article III, is the power of any Federal court to invalidate acts of Congress. English courts did not toss out acts of Parliament. Surely, if the Constitution afforded the Article II branch, the President, the limited power to undo the work of the Article I branch, the Congress, by veto, and did so expressly, it would have been more forthcoming about this extraordinary, unprecedented new power assumed by the Article III branch. Marshall writes, "It is emphatically the province and duty of the judicial department to say what the law is." Emphatically, it is not. How did he get away with it? First, the country's political institutions were a-building, and Marshall's reading was, if not definitive, at least not altogether implausible. Second, he was declining a case, not ruling on it. When George Washington asked the Supreme Court to render an advisory opinion, he was told they lacked jurisdiction. Better not to insist. Third, and most important, the result in Marbury was a congenial one to the Congressional majority that first heard it. Marshall's long, involved reasoning could be taken as ornamental. ⁷ Since then, the judiciary has received great deference. If courts can rule on the constitutionality of a statute, legislators are spared some work, and lifetime appointees can take some political risks - when they will - that elected officials prefer to avoid.

Let's distinguish three terms: judicial independence, judicial ultimacy, and judicial supremacy. Courts should be independent, in the sense that results shouldn't be pre-judged. There are limits on that independence. Just as Congress can't find someone guilty of a crime, a court can't impose a greater sentence than Congress has legislated.

And a judge's independence is not compromised because a jury's acquittal cannot be reversed. Independence properly means freedom from interference in carrying out proper judicial functions. Past that, whether it is courts declaring themselves beyond regulation or beyond criticism or, as the Supreme Court has recently done, pronouncing legislation "unwise" - it's a dishonest slogan.

Judicial ultimacy is just the idea that the fate of a law once it gets to the courts is what the courts make of it. Ultimacy, too, has it limits. A judicial interpretation unacceptable to a legislature will result in revised legislation. And as the judiciary is ultimate relative to the legislature, so the executive is ultimate relative to the judiciary. The executive usually does defer to the judiciary. But Lincoln's reading of Dred Scott is the great counter-example. He said the case bound only the parties to the case, and Roger Taney had no authority to extend it to anyone else. Had Taney opposed Lincoln on the point, it is not hard to picture (not unpleasant either) a couple of soldiers showing up at the Capital with an order from the President in hand, and escorting Roger Taney to a ship bound for exile.

Judicial supremacy is, essentially, a myth. The Supreme Court did not explicitly claim its rulings were "the law of the land" until the second half of the Twentieth Century. It is a doctrine not found in the Constitution itself and never ratified by either collateral branch. Judicial supremacy is harmless enough as a controversial hypothesis.

It becomes dangerous when it masquerades as judicial independence.

Those on Michael Schiavo's side are also on the side of such judicial "independence." "Terri's Law" directed the District Court in Florida to hear the Schiavo's case de novo. By way of comparison, a civil case in New York involving a few thousand dollars can be heard de novo after a verdict, as a matter of right. That the Congress could direct a Federal trial court to sit as a Federal trial court - this was not Marbury - would seem beyond dispute. The District Court disagreed. It refused to hear the case de novo, preferring to treat the case as an appeal and, predictably, it saw nothing irreversible. And its idea of a stay was not to keep the patient alive throughout the litigation, which was likely to be brief, but to keep her starving and dehydrated, on the fast track to the crematorium. The Federal appeals court, jeeringly, affirmed. The Supreme Court declined to hear the case. At least, we were spared a variant of "Three generations of imbeciles is enough."

In the left/right alignment of the Schiavo case, the judges opposing the will of, oh, the Worst President Ever and Tom DeLay and Randall Terry and that sex offender are the progressives. That many of the judges are known to be conservative Republicans is offered as proof of the extremism of "Terri's Law." The institutional solidarity of judges is imagined away. When judges are of one mind, who knows whether that mind is of the left or of the right? The knowing know.⁸ The Supreme Court (and by some illogical extension, all courts) acquired a halo more than a half-century ago. Little in its history presaged Brown vs. Board; nothing since has matched it. We may, for argument's sake, take Brown as more typical of the Court's practice than Scott against Sanford. Even so, the cult of the Supreme Court should look a little closer at Brown. The case was first argued during Fred Vinson's last term as Chief Justice. The preliminary vote was 6-3 to retain segregation. Earl Warren was to replace Vinson, so decision was reserved, and argument was rescheduled. Assuming a Court made up of learned jurists applying settled Constitutional principle, we would expect the vote in favor of separate-but-equal to be either 5-4 or 7-2. It was, of course, 9-0 to end segregation in the primary schools. Warren lobbied his associates effectively and insistently. Two aims of that lobbying stand out. First, segregation was a serious handicap for the United States in the prosecution of the Cold War; i.e., the immediate political situation outweighed the intent of the Congress that wrote the Fourteenth Amendment. Second, Warren only needed to flip one vote to get a 5-4 majority, but he saw a unanimous Court as necessary to secure compliance from a recalcitrant South. (When George W. Bush came back to Washington to sign "Terri's Law", of course, that was just grandstanding.) The main thing that the cult of the Supreme Court should understand is this: what Brown overturned was less the rule of a Kansas school board, than the "law of the land" as pronounced by the Supreme Court in the Nineteenth Century and affirmed over and over again in the Twentieth.

But there's more to it than Brown's warm afterglow.

"Progressives," who can't win elections (i.e., who are not the majority) turn to courts instead. It ought to be a bitter pill to rely on such anti-majoritarian institutions, but nobody seems bothered. There are costs, naturally. First, the vision of political action becomes this: small teams of professionals, preferably graduates of elite schools, funded by large fortunes, either directly or indirectly through foundations, win one-vote majorities of this or that appellate branch. The idea of democracy as the public life of a free people is, well, it'd be a freak show. The thought of a people once upon a time in Michigan, seizing their factories, making themselves at home there, fending off official violence, emancipating themselves, and all in open contempt of Federal injunctions - was it all just a dream?

Second, there is a cultural component. Any savage can run for office, and with enough votes, serve. The judiciary are the gatekept. Judges, with virtually no exceptions, are people in suits with graduate degrees. One is expected to stand in a judge's presence, etc., etc.

The gatekept may, in fact, often act more justly than the elected savage. But it is noxious to a democratic ethos to favor a politics that filters out the yahoos (also/known/as one's fellow citizens).

III

It's been said that the Schiavo case was a major defeat for the "right." Don't be so sure. People are said to have rallied around the judiciary in the face of extremism. Tom DeLay has threatened to impeach judges. Except he hasn't, and he's not a Senator, and nobody's getting impeached, and it is not beyond the pale to mention constitutionally prescribed measures. The spectre of violence is raised. The family of a Federal judge in Illinois was killed, and a state judge in Georgia, along with other court employees, was killed. In the first case, the killer was a disappointed litigant, in the second, a desperate criminal defendant. Neither had any political affiliations. The lesson: This is where criticism of the courts leads, and why it must stop now. (By contrast, at a time when one man has confessed to participation in a plan to fly a jet into the White House, and another man has been indicted in Virginia for planning to kill George W. Bush with a car bomb, nobody has suggested that it is out of order to criticize the Chimperor.)

A few public opinion polls have been offered as evidence for a backlash against the alleged overreaching of the far right. An ABC poll showed a majority favoring Michael Schiavo's position - but the question wrongly included the words "life support." Time's poll showed a similar majority - but the question took this form: The Schindlers'
say x. Michael Schiavo says y. The judge ruled for Michael Schiavo. Who do you like? On the other hand, a Zogby poll showed 79% favoring the Schindlers' position. Howard Dean has said he means to "use" this case in 2006 and in 2008. It's unlikely to do him any good. Those who regard the resolution of this case as an occasion for gloating, are, whatever a flawed poll or a perfect Katha Pollitt might say, few, and their victories ought to be few. And the untimely death of Teresa Schindler Shivao is, for the small, a small victory.

--------

Notes

1 If only she had been talking about Feb. 15, 2003!

2 By contrast; Howard Dean retired from medical practice years ago (and what a waste of a bedside manner that is!). But out on the campaign trail, would slip the smock on again and treat his audience to his recovered memories of innumerable minors he saw in his practice impregnated by their fathers.

3 This little word "flat" tells us a lot about Pollitt. There are some people who believe the Creation account in Genesis is literally true, some who believe it is literarily true, some who think it's all nonsense. Has anyone ever said, "I could believe God made the world, but in just six days? Come on, it'd take a least a coupla months."

That Pollitt presumably credits some sort of non-theistic Big Bang theory shows her snideness about "six days flat" even sillier.

With Pollitt, there's no reasoning. "Flat" is just attitude. The rest of her sentence says that she disdains this canaille. "Flat" says, No, I really disdain it.

4 It is possible to sympathize with the man in a noirish, all-too-human perspective. He's got an unconscious wife, no good to herself, and to him nothing but a burden. And he's got a whole contraband family. He wants out. Of course, the lightest breath of that sympathy is also the whirlwind that carries all the public posturing away, and no one knows where. [Or more blandly he's moved on. But if he's moved on, he's no longer her family.]

5 Assume even it was her wish. She had no need to die now. The need was all his, and even a living will would have given him authorization but now commanded him to let her die.

Supporters of Michael Schiavo like to imagine that if only Terri had five minutes of full consciousness and the full use of her hands, she'd surely sign a living will. Isn't it at least as likely that she'd sign a divorce petition?

6 "Dems"? Is it the proud full sail of her great ego that has her referring to the Democrats in such a chummy, breezy way, even as she slanders them? Dems is acceptable in a headline, where mordancy (not something Katha Pollitt does) is prized. "Dems" in this context is just vulgar, and not in a good way.

7 Twenty years later, in Johnson against M'Intosh, a parcel of land in today's Midwest had been sold by a local Indian tribe and also sold as United States property (the title claimed by James I had passed to the U.S.). Marshall ruled that the claim of the United States would prevail. He wrote "these claims have been maintained as far west as the river Mississippi, by the sword. It is not for the courts of this country to question the validity of this title."

Where the sword was drawn, it would be impolitic for him to oppose.
Judges have the last word as they have careers: only during good behavior.

8 Some further left/right commentary: The New Republic and The Nation
(!) ran articles expressing some nervousness about the privileging of courts. Charles Krauthammer and Ted Olson came to the defense of the judiciary.

Back in the Day

Tue, 07 Jun 2005 19:12:20 -0500

When we were boys
We called each other “Man”
With a long n
Pronounced as if a promise

We wore felt hats
That took a month to buy
In small installments
Shiny Florsheim or Stacy Adams shoes
Carried our dancing gait
And flashed our challenge

Breathing our aspirations into words
We harmonized our yearnings to the night
And when old folks on porches dared complain
We cussed them out
under our breaths
And walked away
and once a block away
Held learned speculations
About the character of their relations
With their mothers

It’s true
That every now and then
We killed each other
Borrowed a stranger’s car
Burned down a house
But most boys went to jail
For knocking up a girl
He really truly deeply loved
really truly deeply

But was too young
Too stupid, poor, or scared
To marry

Since then I’ve learned
Some things don’t never change:
The breakfast chatter of the newly met
Our disappointment
With the world as given

Today,
News and amusements
Filled with automatic fire
Misspelled alarms
Sullen posturings and bellowed anthems
Our scholars say
Young people doubt tomorrow
This afternoon I watched
A group of young men
Or tall boys
Handsome and shining with the strength of futures
Africa’s stubborn present
To a declining white man’s land
Lamenting
As boys always did and do
Time be moving on
Some things don’t never change
And how
back in the day
Well
things were somehow better

They laughed and jived
Slapped hands
And called each other “Dog”

Among the Believers

Tue, 07 Jun 2005 18:58:41 -0500

Lifeline, Iris DeMent, Flariella Records
The Way I Should, Iris DeMent, Warner Brothers
What's the Matter with Kansas? , Thomas Frank, Metropolitan Books
Spirit and Flesh, James M Ault Jr, Knopf
American Jesus, Stephen Prothero, Farrar, Straus, and Giroux

What's the Matter with Kansas? is one of those books passed around and recommended by friends to explain the continuing rightward lurch of the USA, and Thomas Frank himself, funny in person as well as in print, appears to be the keynote speaker at all conferences to the left of the DLC. Besides the fact that what he's saying is true, Frank's thesis gains traction because he comes across as having genuine affection for the working class pro-life, creationist activists he profiles. Briefly put, Frank sees his native Kansas as the prototype for a nationwide right wing forged by the corporate class accommodating itself to anti-elite culture-issue voters kept at a boil since the Democratic Party abandoned economic issues that matter to working people. Kansans lose ground while taxes are cut, the rich grow richer, and ambitious politicians take the corporate cash and learn to use God-centric lingo.

I think it's a great book, short and entertaining enough to loan to a friend; not the kind of book that should be scrutinized for a tightly reasoned academic argument. But it does leave itself open to one line of attack: isn't this just a fancy new version of the old left "false consciousness" line? Isn't Frank saying that if the anti-evolution school board activists really knew what they really really wanted, they'd be joining the Communist Party, oops, er, um, reading The Nation?

Actually, Frank believes the working class of Kansas has been abandoned by the left, with nowhere to turn but activism drained of any economic interpretation, and suggests the anti-evolution activists may be Pentecostal Abbie Hoffmans, cooking up new ways to freak out the snobs. Still, there is a whiff of the false consciousness argument here, because Frank leaves the impression that religion is something people turn to when the role of business is removed from their politics. So right-wingers can dismiss him as just another secularist trying to reimpose his atheistic world-view on the faithful. Kansas is too good a book to allow that attack to succeed. In defense, I would offer the following CDs and books to elaborate beyond Frank's basic argument.

Iris DeMent occupies the same musical space between country and folk as her occasional touring and singing partner John Prine. Sometimes this is called Americana, or Roots music, and DeMent can out-rootsy anyone, but she has irked the taste police of this tasteful genre by lurching from old-timey backed confessional insight to folk-rock social critiques to a whole pile of old hymns (and one self-penned song about Jesus) on her latest album Lifeline. Folkies may recognize a couple of these from the Joan Baez repertoire; some are songs we sing with the words changed at my liberal Protestant church on Sunday. But DeMent achieves a kind of miracle. She skips the smug satisfaction and washed-out enervation of much white Christianity as well as the hats-off-to-mama obligatory nod of country stars' occasional sacred albums. Instead, she sings like her life depends on it, the Okie Aretha, with a desperation we usually attribute to black gospel music, as if the music is indeed a lifeline.

What's this got to do with Thomas Frank? Iris is on the left; check out "Wasteland of the Free" on her CD The Way I Should. Sample stanza: "We got CEO's makin' 200 times the workers' pay/ But they'll fight like hell against raisin' the minimum wage/ And if you don't like it mister/ They'll ship your job to some third world country ‘cross the sea/ And it feels like I'm living in the wasteland of the free." But she inhabits the same secular, well, wasteland as those anti-evolution activists in Kansas, with many of the same cultural reference points. As Iris sings it, the quest for meaning and personal grounding in a de-industrialized, globalized, brutalized consumer culture can turn to tradition without turning towards intolerance. "These songs aren't about religion," she writes in the liner notes. "At least for me they aren't. They're about something bigger than that."

This is doubly important because the secular white left sometimes "allows" African-Americans a spirituality considered out of date or out of bounds for Euro-Americans. Everyone from John Kerry to Alexander Cockburn practices this weird double standard, where a political position intertwined with religion is tolerated from blacks but not from whites. That's the open playing field George W Bush runs in for his frequent touchdowns. If only Blacks can mix politics and traditional religion on the left, then when a white person works that angle, they must be on the right. Not true, sings Iris.

This is dangerous terrain. With that cat out of that bag, we might have something in common with those anti-abortion activists out in Wichita. James M. Ault Jr. explores this possibility in Spirit and Flesh, a description of his time spent researching a right-wing born-again Christian church down the Turnpike from his home in Northampton, Massachusetts.

There are a number of things to like about the book, besides the fact that it takes everyone seriously as human beings. For one, these Falwellites live and worship in ultra-liberal western Massachusetts; this red state is in the next town. For another, Ault lets you watch him shuffle between them and his post-modern academic buddies over at Brown. (Guess who comes across as the more intolerant?) By book's end, Ault, a lapsed Methodist has even been inspired by his born-again friends and becomes . . .a liberal Episcopalian! Holy connection!

Ault parses out how the religion actually works in the working class lives of the congregation. For instance, the sex role differences backed up by Bible verses that seem retrograde to outsiders in the professions are used within the community to increase interactions between husband and wife. The emphasis on family sustains extended families that are the crucial safety net; the sexual morality is applied with more elasticity than the rhetoric suggests.

Taking this one last step in American Jesus, Stephen Prothero shows us the salesman Jesus, the Black radical Jesus, the reform Jew Jesus, the biker Jesus, the sexually ambiguous Jesus, the Muslim Jesus and suggests that something in our culture or political structure, (maybe the absence of a state religion), requires a mediating metaphor. If true, Thomas Frank's fellow Kansans are onto something, and it might be better to acknowledge that and work out the differences from there rather than jumping off from an a priori "Are you out of your f. . . . . . . mind?" Those of us lucky enough to experience inspiring political movements know that engagement can be fulfilling without being, to use the current phrase, faith-based. But trying to re-establish some sacred space in a world drained of meaning by corporate culture shouldn't be left to those who can only pull towards reaction.

Iris DeMent knows it isn't easy, but show's that it's possible, even necessary. The art of her singing manages to locate and highlight the psychological payoff inside the idiom of traditional southern white Gospel music. But the urgency in her voice leaves an open question. Is this the sound of someone reclaiming a tradition, or the sound of a tradition being ripped away from the Left for good? Thomas Frank lays out what happened in Kansas. Is Ohio next?

Tales From Behind the Black Curtain

Tue, 07 Jun 2005 18:29:47 -0500

Now that hiphop culture has become the lingua franca of international media and business, it ironically keeps a class of Black Americans, especially youth, in isolation. That's how hiphop preserves it source--the engine of its innovation and perpetuation and commerciality. This conclusion is unavoidable after perusing educational statistics or watching many of the current Dirty South rap acts--Cassidy, Trick Daddy, Lil Jon and the Eastside Boys--whose language and behavior are a throwback to the socially-deprived manner and habits of black folks before the civil rights era. All varieties of social and economic progress seem to have passed by them. Only a few (Up North, West Coast, and across the country) stand to reap profit from exploiting their own deprivation. Yet the glorification persists. It's as if an iron curtain had descended between these black youths and other Americans.

This Black Curtain's divide is not economic or moral but cultural. And unless one is sensitive to the deprivations black youth face, the Black Curtain is virtually invisible because the black youth behavior that popular culture frequently displays cannot be easily distinguished from what admirably, and naturally, defines black American lifestyles. Like the Iron Curtain Winston Churchill described at the end of World War II, hiphop's Black Curtain cuts off a real segment of the population, exerting influence and control over a group's aspirations. The habits and achievements of these children of capitalism are not autonomous; they have come to fit a pattern, reflecting the commercial conventions of the day.

Behind this Black Curtain, anything that pertains to black segregation is considered acceptable, whether it is an intrinsic style of speaking, singing, dancing, dressing--or unlearning or lassitude or fecklessness. Just ask a ruthless and wealthy entrepreneur like Def Jam/Rockafella's Damon Dash, a privileged spokesman for the marketable deprivations of black youth culture. The less-fortunated are perpetually teased by Success such as Dash lives out. The myth of the American Dream is embodied--celebrated--by black-face revenants from Russell Simmons and P. Diddy to Queen Latifah and Eve. A generation of media consumers remains in the straits between their subculture and mainstream culture.

Hiphop's prominence results from a collision between prideful black nationalism and Reagan-era capitalism. Who knew the fall of Communism would coincide with a new, homegrown Balkanization? Both the Civil Rights Era ideal of advancement through integration and the race man/woman's vision of black solidarity have been subsumed by avarice. "We Shall Overcome" has been replaced by the imperative "Do What You Gotta Do." This development was underscored by comedian Chris Rock while hosting the MTV Video Awards. Following a performance by Snoop Dogg and his mentor Don "Magic" Juan who hoisted a pimp's chalice in salute to the chorus line of half-clad, vixenish sisters parading in front of a global audience of viewers, Rock ad-libbed, "Isn't it wonderful to see Dr. Martin Luther King's dream come true?" Here are several recent moments in our hiphop era's waking nightmare.

1

Chris Rock's obnoxious performance at this year's Academy Awards ceremony was what African Americans down South describe as "showing your ass." The mainstream media responded differently, praising Rock for being "edgy," because it was content with the liberal condescension to which Rock caters. Typically, Rock will angle his stand-up comedy routine to ridicule black culture and black behavior, justifying cultural stigma and racist stereotype. This has won him acclaim as "The Funniest Man in America" in a Vanity Fair cover story (a rare exception to its white cover conventions). Rock also received a featured profile in the New York Times Magazine; one of the story's anecdotes recounted how even white officers at a police precinct in the notoriously racist Staten Island proclaimed Rock as their favorite comedian.

The Oscars confirmed Rock's mainstream approval. His hosting gig was praised in advance as a social advance, elevating Rock from his neo-chitlin' circuit/hiphop subculture. Fact is, Rock's precedent set back the progress of black performers by demonstrating how easily success in mainline culture can be had if one lacks principles. His presumed "edge" was to seem outside Hollywood corruption while simultaneously being all up in it. Rock's tactless, unfunny jokes (against left pariahs George Bush, Mel Gibson and box-office failures Jude Law, Colin Farrell) got great reviews from pundits because he displayed enmity for the incorrect and mocked momentarily disgraced celebrities.

Rock's comic specialty should be properly recognized as "punk"--not in the sense of British pop music rebellion but in the long-standing American sense of bratty yet cowardly behavior. (He joined the Hollywood mob against Bush and Gibson and kicked Law and Colin at career low-points.) In the now unfashionable sense of ethnic accountability, this can be called: selling out.

In the most high-profile moment of Rock's career, he brazened "blackness" while misrepresenting it. The pretense of black folks' advancement--further promoted by the Oscars' celebration of Jamie Foxx's performance as Ray Charles--is what's most troubling about Rock's new status. (In 1969, film critic Pauline Kael bemoaned Hollywood's exclusion of black pop performers: "Hollywood did more with Fats Waller in the 40s than it has done with Ray Charles and Aretha Franklin throughout the 60s." She pointed out the reality of cultural racism that has not changed despite the current heroicizing of Charles and Rock's recent ordination.) Selling-out means Rock can accept Hollywood's blandishments without having to reject its racism.

Rock's "progress" is facetious. He actually upholds cultural stigma. That was clarified by his disgraceful Oscar segment taped at a Magic Johnson movie theater in Compton, CA. Rock's shtick was to show the Oscars were out of touch with movies that "real people" (black ghetto folk) enjoy. But he manipulated the skit to show only those blacks who went to stereotypical exploitation films like White Chicks, Saw and Soul Plane. He left out blacks who went to Million Dollar Baby and The Aviator, as well as those whites (or any one else) who went to Soul Plane and White Girls. Rock fostered the racist notion that all black folks think alike and enjoy the same dumbed-down entertainment. He appealed to white racist ignorance by excluding other ethnic groups (and their varied, surprising, democratic range of taste) from his jokey film culture essay. Rock's basic message--as usual--was: Yes, blacks deserve to be stereotyped negatively.

2

Tyra Banks' reality tv series America's Next Top Model is the best of the prime time shows that pretend documentary realism but are really sweepstakes contests. Banks offers her young female contestants the carrot of extending their 15 minutes of fame. But more importantly, she gives viewers a helpful look at the competitive nature of American big business (plus the insight that fashion and entertainment are indeed parts of big business). Producer-creator-host Banks--perfectly named--is one of the few contemporary Black pop figures to balance her pride of accomplishment with social consciousness. She ensures that ANTM is also a civics lesson. The show's biggest revelation came in the episode where the most feckless black contestant declared: "My mother and grandmother are not ghetto but I choose to be ghetto."

When the stubborn fashion-industry hopeful refused to participate in the show's games then laughed off her failure, Banks exploded. She berated the girl with the full indignation of the previous generation of African American strivers. Banks nailed young blacks who angrily defy social strictures without summoning the energy to accomplish worthwhile goals. P. Diddy's Making the Band series for MTV, by contrast, embraces those ingrates' attitude of entitlement. Diddy's show is built on arrogant tantrums, which he manufactures. While Banks' preferable program offered rare, raw proof of illiteracy and rascality (hiphop era defiance) chosen as a kind of life-style option, ANTM condemns this dire social development; Banks instructs her young charges rather than exploiting them Diddy-style. Though glamorizing the competition for fame and riches, she manages to shine a light through the fog of caste.

3

Ossie Davis' funeral marked the end of the Civil Rights Era's Old Guard. This solemn occasion illuminated the existence of the Black Curtain more than even the controversy over Bill Cosby criticizing the failures of modern black parenting. Davis' passing was mourned by a retinue of elderly, unfashionable cultural figures, even a retired American President (Bill Clinton surprisingly quoting Nina Simone). It was a rare public demonstration of blacks and whites who shared a social vision that's fading. Actor Burt Reynolds' confession, "Ossie Davis took the bad part of the white south out of me," was humble, loving, familial--a startling contrast to the cartel-brotherhood modeled by Eminem, Dr. Dre and 50 Cent.

With each testament to Davis's now unfashionable political drive and ethical stance, the line of obsequies (from Attala Shabazz's personal memories to Alan Alda's professional recall), began to resemble a parade of shattered hopes. As a tv broadcast--indicative of America's consciousness--it seemed anomalous amongst the game shows and celebrity marathons regularly televised. Although it was "live," it was also sur-reality tv--and saddening for its evidence of social decline.

In Black gospel parlance, a funeral is called a "home-going;" the perspective meant to revitalize mourners suffering through their time of loss. But a cultural leader's funeral marks a larger moment of transition; it is more than a personal tragedy. The author of Purlie Victorious (the satire about an itinerant 1960s Black preacher finally overthrowing the remnants of Jim Crow) and the man whose oration designated Malcolm X "Our black shining prince" demonstrated an awe-inspiring accountability to the future. Davis epitomized the 60s moment when activists not only had a sense of duty, but felt anxiety lest they fall below the level of achievement that would uplift their people, and move the whole wide world up a little higher. Davis believed in culture that edified and sustained his people, while affirming their claim upon society. But today the claim has narrowed into the covetousness that pop entrepreneurs now cultivate to tease--and delimit--their audience's aspirations. Laissez-faire capitalism and laissez-faire democracy are the bulwarks of the Black Curtain. Davis' funeral is the perfect moment to realize hiphop's confusion of doing well with doing good. As a result, hiphop culture's demand for black folks' acceptance and prosperity by any means necessary has unwittingly become a barrier to their empowerment.