Sheridan: Con-Law

STATUS EXCHANGE, FALSE ACCUSATION

Know what to look for.

Debunking false accusations requires some insight into why some of us falsely accuse others of committing terrible crimes.

In several cases I'm familiar with a woman has come up with a story, which if proved, would make her a victim and her former boyfriend or husband a villain.  In the morality play called life, it is not good to be cast as the villain, especially if you didn't commit the requisite offense. How much better it is to be cast as the victim. You avoid blame, obtain state victim compensation money, keep your subsidized housing if that is what you lived in, and win the child in the custody battle.  These are powerful incentives to cast the blame the other way.

But there's more to it than that.

Say you're a guy and you ask your wife to P-L-E-A-S-E close the door after she comes in, or turn out the light, or not squeeze the toothpaste tube in the middle.  I had a college professor who mentioned more than once that this latter was the chief cause of divorce in the U.S.  I'd thought it was marriage, but he's probably more correct. The wife is tired of you complaining about her alleged deficiencies, moral deficiencies, as she reads it.  What does she do?  She hurls back at you a list of grievances, your own misdemeanors, that she's been chewing over for the past year.  That's old news, you argue, we got past that ages ago, you protest.  I've got news.  This is not old business.  It's new.

By your complaining today of her little faults, you are claiming the moral high ground in the tug-of-war which is marriage as often practiced. Can she let you get away with this?  Do you think you have succeeded when you put the moral burden of guilt on her?  Don't be silly.  All you've done is to invite a cross-complaint, a counter-suit, for your own wrongdoing.  Better not to have complained at all, for when you do, be prepared for the onslaught.

This, I think, may account for a number of accusations which turn out to be overblown, if not entirely false.

What brings this to mind is a news article in this morning's SF Chronicle about a woman who accuses her former boyfriend of four years, they were about to be married, of stalking and threatening her.  He's a well-known former professional football player who now coaches at the high school level.  He'd been involved in the steroid scandal and been sentenced by a federal judge.  The ex says he's had trouble dealing with it and her, seeming to regard her has belonging to him and not letting her run off without a struggle.

She made a reasonably persuasive argument, it seemed, so I looked at the comments below the online article.  I was surprised to see several comments from skeptics who regarded her account as false in that she claimed she'd ridden her bicycle at 11:00 p.m. from a fitness class she taught and he'd bumped it from behind with her car, causing her to fall and suffer bruises.

I began to think more fully on the proposition that all might not be as it first appears.

The problem with trying to decide cases based on news stories is that you don't get to see what's behind the allegations.  You find yourself in the position of someone being fed selected facts to support a position.

The position may be right or wrong but you won't know unless and until you read follow-up articles, perhaps even containing what the other side has to say.

What kind of woman is this?  The article just says she's the former fiance of the noted former football pro.

So, without more, she's a paragon of virtue, because no description of her appears in the article, only the muddying up of him.

My experience with humans suggests that when two people get together, rarely is one a paragon of virtue and the other a devil, at least not at first.  Not only that, but the one who lambastes the other first may simply be projecting her own worst fears onto the putative devil.  She may be the one who is the devil.  We don't get that from the article about the football player.

In several cases where the woman has accused the husband or father of having molested the child sexually, despite no evidence beyond the mother's suggestive question of the child, the father has struck me as being unusually nurturing.  Why are the good guys being accused, I wondered.

That's when I lit on the idea that the making of the accusation serves as a vehicle to exchange status:  she rises up in the eyes of herself and her world while he tumbles down.  Her allies rally to her, his to him.

What, I wonder, goes on in the mind of the false accuser?

Perhaps it goes like this:  I'll teach you, you SOB, to ruin me, and I'll use every weapon at my disposal, from getting the child to side with me, to taking out a restraining order, to filing a police report and having you arrested, even if it means scratching my face or bruising my arm.  Police policy in California is to make an arrest of the other party if the one who complains can show red marks or injury.

The legal play, from the attorney's standpoint, begins there.  In actuality it began a long time before that.

May the best story-teller win, for that's what it will come down to in the end, if you even get to tell your story.  Trials are costly propositions and not always available.

Stories of monstrous men abound in literature.  The Minotaur, half man, half-bull, is from ancient Greeks. He lived in the center of the Labyrinth, from which no one who entered could find his way out. He devoured so many youths and maidens each year.  Theseus of Athens resolved to end the slaughter of his countrymen.  Enlisting the aid of Ariadne, the daughter of the Minotaur, she supplied him with a thread to unwind as he entered to confront the Minotaur, so he could follow the path back.

There are female monsters, as well, starting with Medusa in the Greek tradition.  The Old Testament has Jezebel a Palestinian married to a Hebrew king, so we don't expect her to fare well in the press releases, do we. She becomes distorted into a scheming, deceitful, vindictive woman in the resulting account.

The point is that the ancients were well aware how distorted we become when we become fixated on establishing our position to the detriment of others.  Distortion morally becomes distortion physically, the result becoming a graphic image of a semi-human monster.

The interesting think about the ancient Greek way of looking at the world is that they personified everything, meaning that if it was raining, the rain god was responsible.  Who took care of the crops?  Ceres, hence cereal.  The sea-god?  Poseidon.

Every natural thing fell under the dominion of one of the gods.  Since we know that the wind can roil the waves, it appears that the two gods are fighting.  A wonderful Greek way of showing that abstract ideas can conflict is to portray each as a human-like figure and set them to fighting.  Perhaps one is angry or jealous over the other.

How does this relate to Conlaw?

The same way everything relates to Conlaw.  If it's human, it relates to Conlaw, as Conlaw is the operating system that regulates the applications programs such as the criminal law, torts, contracts, etc.

Before we even had Conlaw (only 225 years or so ago in this country, the first to have a written constitution, it is said) we had constitutional law, meaning the understanding of how your country was set up, say as a monarchy or a tribal village. 

Before we had psychologists we had doctors treating mental patients.  Freud tried to describe what was working below the surface.  Shakespeare was the master psychologist he was unable to overcome.  The god of psychology is not Sigmund Freud but Shakespeare.  And where did Shakespeare get his ideas and insights from, apart from those around him?  He relied in considerable part on Virgil (the Aeneid) and Ovid (Metamorphoses).  See Herbert Bloom's The Western Canon and Anthony O'Hear's "Great Books," "The Tempest."

In law we study subjects in segmented compartments, such as the above-mentioned criminal law, torts, contracts, etc.

This is an artificial construct for teaching (and learning) convenience.  The compartments have limited relevance to real life where any case may fall into multiple categories and usually does.

Today's news also has it that the White House, key senators and media representatives have agreed to a way through the morass of questions concerning whether news reporters must disclose the names of confidential sources, such as in case of leaks by government officials, as in the Valerie Plame affair. 

There VP Cheney's aide, Scooter Libby, was convicted of leaking to the press the identity of a CIA officer in retaliation for the public debunking her husband gave to Pres. G.W. Bush's reason for invading Iraq, the notion that Saddam had been stockpiling yellowcake, a precursor ingredient used to make the uranium needed to manufacture nuclear bombs. 

We were being ginned up for war but Plame's husband, former ambassador Joseph Wilson, blew the whistle for which he had to pay the price from the powers that be.  So his wife was burned in public. The result was a scandal that blew back on the administration.  Our own Dreyfus-like affair.

The deal is said to give the government authority to override the shield for reporters against disclosure in certain national security cases but not necessarily in ordinary criminal or civil cases.

Sen. Charles "Chuck" Schumer (D. NY) said the agreement (per the AP report) "strikes the right balance between national security concerns and the public's right to know."

The ancient Greeks might have said that the war between Mars or Apollo, representing government, and Dionysius (?) or Athena, representing the people, had been successfully concluded with a treaty among the ruling gods.

Schumer said the agreement would preserve a strong defense for reporters trying to protect sources while making sure the government can do its job of protecting citizens.  The Senate Judiciary Committee will review the new legislation, perhaps next week.

An earlier bill had provided for a balancing test in which a federal judge would decide between government and the reporter.  Balancing tests have been severely criticized as a way of balancing away your rights.  Government nearly always wins because government can always maintain that it is seeking to protect the greater number than just you alone.  Individual rights, to withstand the balancing-away of federal judges, must be cast in terms of prohibitions that federal judges cannot ignore.

Under the new bill, the balancing test would be eliminated in classified leak cases.  Instead, the government would have the burden of showing that disclosure of the source is necessary to prevent or mitigate an act of terror or substantial harm to national security.  Balancing is thus replaced with burden of coming forth with evidence that proves the government's case.  This should end the government practice of hollering "national security," the former magic words that ended all inquiry and served to conceal official wrongdoing, incompetence and political embarrassment, with the duty to come forward with proof that the troopship on the tide will be sunk if the information is not protected from disclosure.

In Floyd Abrams' book Speaking Freely, he writes of his experience defending the New York Times in an action for injunction against publishing the leaked Pentagon Papers, filched by Daniel Elsberg from the Pentagon, which showed the government to have lied to us about the need to invade Vietnam and wage war there for so long at the cost of so many lives, 58,000 of ours, 3 million of theirs.

Abrams recounts that one of the first problems encountered by the court and counsel for both sides was what "national security" meant, meaning legitimate reasons, not make-believe.  Was a history of prior dealings a matter of national security?  Or did national security mean what could happen tomorrow if certain information leaked.  The discussion quickly devolved to the point where it could fairly be said that history was not ever likely to be a matter of national security, as yesterday's news wasn't apt to start tomorrow's attack, but that news of a troopship loaded and planning to sail tomorrow could result in the loss of an army, so that was legitimate information to prevent disclosing.

The test of national security in the Pentagon Papers case was whether any of the information in the thirteen volumes amounted to troopship-on-the-tide information.  The Supreme Court quashed the injunction.

Under the compromise bill, the balancing-away test would exist for cases not involving classified leaks, but in criminal cases the burden would be on the journalist to show clear and convincing evidence that guarding the anonymity of sources is in the public interest.

In non-criminal cases, the government would bear the burden to prove that the disclosure of a confidential source outweighs the public interest in gathering the news.

The legislation, when passed by Congress and signed by the president, would apply to the federal courts.  State protection for journalists would be left intact.

One of the difficulties for law students (and lawyers and judges) is in recognizing and dealing with conflicts between subject areas of law.  It is straightforward enough to study contract law or torts, but couple those with due process and equal protection and you're in for a ride.

One way, I suppose, to clarify, would be to establish a god of equal protection and show him fighting with the god of due process, contracts, or torts.

Prof. Francis Putnam of NYULS when I was a pup, used the image of a sword and a shield in making the point that a doctrine of law doesn't work only in one direction.  Sometimes it can be used as a sword in asserting a claim and at other times as a shield, to block a claim.

The absent god (or goddess) in in his metaphor must've been the attorney wielding the implements of war.

Funny thing about the Greek gods is that when the Christians came along and overthrew them, the pagan gods were then viewed as fictional characters created by imaginative poets and playwrights.

This doesn't say much for the gods of the old and new testaments, does it?

I mean, if the Greeks worshipped literary characters of their own creation, what is it that we worship?

Fundamentalist will tell you that God got there first, and that He created the poets and playwrights.  But as Xenophanes wrote, if cows could write and draw, their gods would look like cows.

It appears, unless I'm horribly wrong, that we worship literary characters.  I thank Prof. Herbert Bloom of Yale for the insight.

Well, if children can fall in love with Disney characters such as Mickey Mouse and Cinderella, why can't they fall in love with others?  I wonder how Disney missed Santa Clause and the Easter Bunny.

Charlton Heston was Moses and so-and-so was God.  He must've gotten ribbed at the Friar's Club.

So what is the answer?  To questions of God, and life?

My readings suggest that there is no answer.  The best answer is another question.

Uncertainty, equivocation and ambiguity are the stuff of life.  We're not really sure where reality ends and illusion begins.  All the world's a stage because the universe is a theater of the strange and seemingly impossible.

Shakespeare and Cervantes had great fun with the interplay between reality, or the appearance of reality, and illusion, the belief that what is not real is real, and vice versa.

Which brings us back to the accusation of the woman against her ex, the pro-football player.  Is she reporting accurately?  Or is she distilling years of grievance into a legal action for protection against the alleged monster she chose to live with for almost four years and to come within a week of marrying.

Are you a believer or a skeptic?

The first principle, a wise man said, is not to fool yourself, but remember, you are the easiest person to fool.

ON NOT INVESTIGATING COMPETENTLY

As a student of the subject of investigation, a bit of a connoisseur, I hope to think, I pay attention when one is done right and solves a mystery.  I should start posting the good ones here.

A recent one that I didn't post, but may, has to do with the two airline pilots who overshot the airport in Minneapolis by a hundred-fifty miles and ninety minutes.  Fighter jets scrambled when the pilot and co-pilot failed to respond to radio contacts from air controllers on the ground wondering what was up.

Eventually they landed safely, but the reason for the screwup, for it had to be that, remained the subject of great speculation for days.

Sound asleep in the cockpit?

They denied sleeping.

What could it be?

I had no idea.

After a few days of head-scratching, and interviewing by the FAA, this story came out:

The two had been engrossed in their laptop computers, going over the new work rules and schedules following the merger of their former airline with the new, larger one, a change which involved complex rule changes.

Plausible?

100%, it seemed to me.

Investigation had solved the mystery; the unknown was now known; satisfaction set in.  It all made sense.  They pilots hadn't passed out, or become ill, or done some unimaginable thing except for one:  they'd been doing the flying equivalent of what I see automobile drivers doing daily on the freeway, texting while driving (one almost rammed me the other day and when he pulled alongside to stop for the light, I could see the cellphone in hand and the driver looking at the screen).\

So that seems like a good investigation; I presume the explanation is correct.  Flying while distracted is about to become some sort of an offense, as it should be while driving anything more dangerous than a bumper car at a carnival, I should think.

Then along came this article about the world's largest Ponzi scheme, the Madoff scheme, in which he stole billions and is now in durance vile for the rest of his day, one believes.

Madoff himself says he can't believe he didn't get caught.  SEC "investigators" visited him six times over the years on various complaints.  It would've been a simple thing to take a few investigative peeks at his company's trading accounts to see that they weren't anything near what he was reporting.  The game would have been up.

But the investigators turned a blind eye.  It was as though they didn't want to know.  Apparently they'd been so taken in by the window-dressing, the trappings of success, that, like Mr. Lonergan in "The Sting," he placed his bet, fully taken in by the stage-managed betting set, the one that came down that night to ensure a safe getaway. But Madoff stuck around and eventually there was nowhere to run as his house of cards came crashing down.

Here's the latest, a news article on the newly issued report by the Inspector General in charge of finding out how Madoff beat the SEC for so long:

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October 31, 2009

Lapses Kept Scheme Alive, Madoff Told Investigators

By DIANA B. HENRIQUES

Nobody was more surprised that the Securities and Exchange Commission did not discover Bernard L. Madoff’s enormous Ponzi scheme years ago than Mr. Madoff himself.

After all, it would have been pretty simple, he said in a transcript of a jailhouse interview that is part of a trove of official exhibits released on Friday by the S.E.C.’s inspector general, H. David Kotz.

In the interview, Mr. Madoff said that the young investigators who pestered him over incidentals like e-mail messages should have just checked basics like his account with Wall Street’s central clearinghouse and his dealings with the firms that were supposedly handling his trades.

“If you’re looking at a Ponzi scheme, it’s the first thing you do,” he said.

Those simple steps, he added, could have revealed years earlier that he was running the largest Ponzi scheme ever, a crime that has now dragged the S.E.C. into the worst scandal in its 75-year history. “It would have been easy for them to see,” he added.

The new exhibits consist of 6,157 pages of interviews, letters, e-mail messages, telephone records and other background material gathered during Mr. Kotz’s 10-month investigation of how the commission handled, and mishandled, numerous tips and warnings it received about Mr. Madoff over the years. His full report,released last month, found the agency had received six substantive complaints since 1992 — and botched the investigation of every one of them. He found no evidence of any bribery, collusion or deliberate sabotage of those investigations.

In fact, Mr. Madoff said in the jailhouse interview that, on two occasions, he was certain it was only a matter of days or even hours before he would be caught. The first time, in 2004, he assumed the investigators would check his clearinghouse account. He said he was “astonished” that they did not, and theorized that they might have decided against doing so because of his stature in the industry.

“I’m very proud of the role I played in the industry,” he said. “Of course I destroyed that now.”

In Mr. Madoff’s second close call in 2006, investigators actually asked for his clearinghouse account number on a Friday afternoon, but then never followed up. He said he firmly expected the following Monday would bring the curtain down on his crime. Again, nothing happened. He recalled thinking at the time: “After all this, I got away lucky.”

His investors did not. According to estimates by a court-appointed trustee who is liquidating his estate, Mr. Madoff’s crime cost thousands of victims at least $21 billion in cash losses, part of the $64.8 billion in paper wealth that vanished when his scheme collapsed.

Despite what Mr. Madoff described as the chronic ineptitude of the S.E.C., he said in the interview that he was “worried every time” examiners showed up.

“That was the nightmare I lived with,” he said, and he told Mr. Kotz he had wanted it to end. “I wish they caught me six years ago, eight years ago.”

Mr. Madoff was arrested in December and pleaded guilty to fraud in March. He is now serving a 150-year prison term in North Carolina.

But the criminal investigation of the scheme is continuing. In a letter to a federal judge, federal prosecutors said that Mr. Madoff’s longtime accountant, David G. Friehling, was expected to plead guilty Tuesday and had agreed to cooperate with investigators.

Mr. Friehling was Mr. Madoff’s auditor from 1991 to 2008. Mr. Madoff told clients that Mr. Friehling audited his investment advisory business from a small office with a bare-bones staff in suburban New City, N.Y., an arrangement that made several investors suspicious for years.

The newly public documents do not add fresh charges to the official findings, but they do provide a vivid sense of the tensions, confusion and petty squabbles that derailed a half-dozen failed inquiries. .

Some interviews describe a culture where understaffed investigations languished for months before sputtering out, unresolved. Others evoke an environment that became openly dismissive of anonymous tips, like some of the early Madoff warnings.

In one e-mail message, a senior lawyer in the agency’s New York office said he thought “we should get out of the business of burning resources to chase Ponzi schemes.”

He later explained in an interview that he thought investigations of Ponzi schemes should be left to other agencies with criminal jurisdiction. Several young staff members said those views had shaped their own misguided decisions in the Madoff inquiries.

Agency staff members repeatedly relied only on Mr. Madoff’s own testimony and records — which were lies and fabrications, as it turned out. An examination of customer records after Mr. Madoff’s arrest in December showed he made no trades for his customers for decades.

Mr. Madoff said in his interview in June that he thought, after all the examinations and investigations over the years, that “it never entered the S.E.C.’s mind that it was a Ponzi scheme.”

The S.E.C. declined to comment on the exhibits.

The paperwork gathered from the agency’s files also tell a tale of unseasoned, poorly managed people who were uncertain about what to do and unwilling to ask for help. In numerous instances, employees would share their doubts about Mr. Madoff in notes or e-mail messages, but then never take steps to press for more information.

In a memo from March 2004, several senior S.E.C. staff members reported that “it seems clear” that Mr. Madoff had “absolute discretion” over the accounts of his clients. Nevertheless, they said, “Bernard Madoff himself has categorically denied being an investment adviser.”

The investigators later forced Mr. Madoff to register as an investment adviser, but never pursued the fact that they had caught him in a blatant lie. Mr. Madoff’s claims of close relationships with regulators was mentioned in several of the interviews with S.E.C. staff and internal agency e-mail messages released by Mr. Kotz.

Mr. Kotz interviewed four former chairmen of the commission: Arthur Levitt, Harvey Pitt, William Donaldson and Christopher Cox. Mr. Madoff’s descriptions in his interview of ties to former officials did not always check out, Mr. Kotz reported.

For example, Mr. Madoff claimed he knew Mr. Levitt “very well’ and had lunched with him on one occasion. But according to a memo, Mr. Levitt testified that he “did not believe he ever met with Mr. Madoff alone” and that he “did not have a personal friendship with Mr. Madoff,” and “had never socialized with him.”

Mr. Madoff also stated that the current chairwoman, Mary L. Schapiro, was a “dear friend” of his, and that she “probably thinks ‘I wish I never knew this guy.’ “ But Mr. Kotz released a statement on Friday saying that there was no evidence that Mr. Madoff had a close friendship with Ms. Schapiro.

The exhibits are certain to be carefully scrutinized by lawyers for several Madoff victims who are suing the commission for negligence. Those lawsuits argue that their losses could have been reduced or prevented if the commission had competently investigated the Madoff firm and pursued warnings about his mysteriously consistent profits.

THE GREATER THE INJUSTICE, THE HARDER TO UNDO

A call this morning from someone who has referred clients before. 

Someone is in trouble; the matter is urgent.  He was arrested and has a matter pending.  Is on parole.

Have him call.

He calls.

I offer him an appointment for today, which is fine except that he wants to tell me over a poor cellphone connection in which one word in four is dropped how something (the word was dropped) happened and then something else and he's really a victim. 

It involves someone else's credit card, the guy who (we clarify) hit him and ran and he chased and the police are trying to put 30 felony credit card fraud charges on him.

Got the picture? 

Neither do I.

All I need to do is get the guy in so I can hear the who-done-what-to-who(m)" stats correctly instead of over this bad connection where the field is muddy.

But he needs me to understand that he's the victim in the morality play he wishes to tell.

No one ever wants to be the perpetrator, only the victim.

The jails are full of victims.

The witness called by the DA first is always the victim, real or imagined, but assigned that role.

The police incident report always leads off with the name of the person assigned the position of privilege in police dramas, the victim.  The person who done in the victim is the suspect.  You don't want to be a suspect.

Then there are the Ws, the wits, the witnesses.

A guy in custody had a friend call to see whether I'd represent in his multiple murder, special circumstances, good candidate for death-penalty case.  The caller advised that his friend, the suspect-in-custody, wanted to assure me that he was innocent, although he was unable to pay any money for this representation, although there would be some available if he were found innocent.  A contingency-fee death penalty case that will only take about twenty years to resolve at the end of a long career in which the promise of another twenty years might seem attractive, provided the clients continue coming and are able to help keep the train running by paying the fare.

Thank you, but I've done my good deeds in the past.

Taking on innocent clients charged with multiple murder and looking at the death penalty is a merit badge already on my sash; no need for a duplicate, thank you.

The Public Defender wails away and I see an occasional news report that cites some unfortunate evidence making it unlikely indeed my erstwhile client is the victim of yet another mistake by the gendarmes, of which I've seen a few.

Hence today's adage, brought on also with reference to an earlier post on the Dreyfus affair:

The greater the injustice, the greater the effort required to undo.

Read, more energy, trouble, time and expense.

Cases of innocence are the skyscrapers of our profession.

Any contractor can pour you a new sidewalk, but few can build skyscrapers.

Skyscraper, anyone?

YAHWEH, SHAKESPEARE, FREUD & HAROLD BLOOM

THE WESTERN CANON, by Harold Bloom (Harcourt Brace & Co. 1994)

Harold Bloom, at the time of writing, was Stirling Professor of Humanities at Yale University.  As a literary critic in charge of teaching the best works, he has to be able to state why particular works are worthy of highest categorization.  His idol is Samuel Johnson the first professional literary critic.

This is an extraordinarily difficult task, literary criticism.  Imagine telling a friend about the movie you saw recently.  "What's it about?"

The other evening at an anniversary celebration for the law school where I've been teaching Constitutional Law, I fell to telling, after having been asked, about a case I've spent the past nine months submerged in, one that I'd found so engrossing that I've begun writing about it. 

"What kind of case?" I was asked.

I thought for a moment.

And another moment.

I was suddenly stuck for an answer about a case I'd been drowning in and had now come up for air.

It was a bit like asking a participant in World War Two what kind of a war it was, then, not now.

"Criminal or civil?" my interlocutor asked, thankfully, breaking the silence.

"Criminal," I replied and was then able to speak.

The fact was that I'd thought a lot about the story that was this case, involving as it did a false accusation artfully woven to get the teller off the hook and to put my client on.  As a work of fiction, I'd been impelled to read on the creation of fictionalized accounts made to look real, hence my poring into literature and its critics.

If you think Constitutional Law challenging, and it is, literary criticism is moreso, at least from this outsider's vantage point.  With Conlaw, you spend years reading cases, biographies, histories, and anything else to gain an appreciation of the context, long gone, illustrating how the cases you study have become iconic.

Certain cases become part of the Canon, the sine qua non of Constitutional Law.  Marbury v. Madison would be the leading example, giving, as it does, or taking by the Supreme Court, of the power to declare unconstitutional the acts and laws done or made by the other branches of government anywhere in the federal-state system.  That's power and it accounts for the controversy invariably, these days, attending the nomination of a new justice of the nine.

The challenge of Conlaw is to describe the meaning of a decision of the Court.  To do so requires familiarity with the law, the context, and the history, all intermixed.  Did I mention philosophy and religion?  There are those.  Our Constitution came along in 1787, a little longer than two centuries ago.  Our civilization, such as it is, has been around for two or three thousand years and another seven or eight before that.  Then there are the hundreds of thousands of years, the millions, we spent before that, working things out.

Today when we want to describe people authoritatively for legal purposes we use the DSM-IV, the Diagnostic and Statistical Manual, 4th edition and counting.  The first came in when I was a young prosecuting attorney dealing with the defense of a murder case alleging insanity because of intoxication.  Normally we don't regard voluntary intoxication as a defense to anything, much less murder, although we might distinguish between cold-blooded killing and a drunken brawl resulting in death.

But what if you can't assign a shrink to the person you need analyzed, what do you do then?

You do what they did before Sigmund Freud came along at the turn of the previous century:  you look at the evidence and draw conclusions based on a knowledge of humanity.

Who did that before us?

Well, there was the writer of the Old Testament, for starters

And who was that, apart from God?

Bloom tells us that the Yahwist or J-writer, from the initials JHWH, for Yahweh, was probably a woman of status in the Temple of King Solomon, Jerusalem, five thousand years ago. That would be Bathsheba, the wife of King David, the mother of Solomon.  She described the god worshipped by the Jews.  He was a literary creation.

We've been worshipping a literary creation for lo, all these thousands of years.

Jesus is a literary creation.

We worship characters from books.

I'd never thought of it like that before.

Thank you, Prof. Bloom.

Who else creates literary characters?

Chaucer.

Shakespeare.

All writers, dramatists, poets, and singers (Homer, for example, composing Achilles, Odysseus, and Hector) create characters we admire or not. 

The hard part is to describe these characters intelligently and accurately.

Are the wooden, cardboard, stock, cartoon characters?  We need those but don't necessarily admire or worship them.

Fill in the blanks, smooth out the curves, make them a bit more real seeming, and  you have a more rounded character.

Does the character listen to his/her own thinking?  Debate with himself?  Decide to do things differently than before, for good reason, or bad?  Does the character respond to his own voice?  This is one of the things Hamlet, the agonizer, does.  We had a judge, locally, who became well known for agonizing over his decisions, arguing, out loud to the attorneys, "Well, on the one hand this, and on the other hand that."  We needed a one-armed judge to decide cases, not a soliloquy on the merits and demerits.  Shakespeare, on the other hand, needed to present us with a character who debated with himself.

Freud, says Bloom, is a Shakespearean.  Shakespeare was not a Freudian.

We could get along fine without Freud, but not Shakespeare.  Of all the writers, Shakespeare shows us how we are, how we think, how we respond to situations according to our character, how we change, are perverse, are constant, sometimes, etc.

The answer to the question as to what we do absent the DSM and Freud is to think for ourselves. 

Shakespeare did it, so can you.

This may take work.

Understanding literary predecessors requires more detective work than Conan Doyle assigned Sherlock Holmes.

Nevertheless, attributing understanding to our fellow human beings is something we do, based on the evidence and our preconceptions.  This understanding, whether we write it down or not is a human artifact, something we compose, create, our of the materials at hand.

How well you do this is a mark of achievement.

See Homer, Chaucer, Shakespeare, and the rest of us.

DREYFUS AFFAIR

Pseudo-science supports paranoia.

Paranoia is supported by pseudo-science.

Paranoia is exaggerated fear.  Worst-case thinking.  Impervious to reason.  Overheated mind.  Mental gears spinning out of control.  No foot on the brakes.  Driving downhill on ice, brakes of no use, tires bald or not.

What to do with a paranoiac.  Isolate him/her and pay no attention to the content of the words.

That's how Salem began, and ended, paying no more attention.

Quiet wards.  With locks.

There aren't enough. 

The world is a crazy place populated by enough crazy people to drive the rest insane if they don't watch out, and sometimes even if they do.

What brings this to mind is that the most interesting of the cases in which I've represented are those where the accusation was false and the question was how to show it.  Since the authorities, by filing, have placed their faith on the word of an unreliable informant, we ask why they did so and how the informant so falsely reported, yet was believed.

Since we don't have the privilege of examining the informant except under constrained circumstances of cross-examination (influenced by opposing counsel and police if you're the cross-examiner, with objections to questions by opposing counsel, merited or not, and rulings by the court, merited or not), the mystery is challenging to expose.

What about a psychiatric examination of the complaining witness in a criminal case, can we obtain that?  No.  Nor a polygraph exam.  Both are outlawed in California, probably for good reason, otherwise every criminal accusation would result in a psychiatric evaluation at great cost and a breakdown in the system.

Adam Gopnik, in the Sept. 28, 2009 New Yorker Magazine, an article called "Trial of the Century, Revisiting the Dreyfus Affair," says two good things:

With the normal prejudice of the secret police in favor of their own suspicions, the Statistique had Dreyfus arrested. As always, pseudo-science came to the aid of paranoia: the Statistique called on a “graphologist” for an opinion, and he testified that the lack of resemblance between Dreyfus’s writing and that of the bordereau was proof of a “self-forgery,” and prepared a fantastically detailed diagram to demonstrate that this was so.

The urge to protect the nation from its enemies by going around the corner to get them is natural, but what you get is usually not the enemies, and, going around the corner, you bump into something worse. Breaking the law to defend the nation ends up breaking the nation.

Trial of the Century

Revisiting the Dreyfus affair.

by Adam Gopnik September 28, 2009

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Dreyfus was convicted on the evidence of handwriting identified as a “self-forgery,” and a single initial in a playful lover’s note.

Related Links

Audio: The Dreyfus affair, then and now.

Keywords

Alfred Dreyfus;

“Why the Dreyfus Affair Matters” (Yale; $24);

Louis Begley;

Anti-Semitism;

“The Dreyfus Affair: A Chronological History” (Palgrave-Macmillan; $37);

George R. Whyte;

Guantánamo Bay

On a January day in Paris, in 1895, a ceremony was enacted in the courtyard of the École Militaire, on the Champ-de-Mars, that still shocks the mind and conscience to contemplate: Alfred Dreyfus, a young Jewish artillery officer and family man, convicted of treason days earlier in a rushed court-martial, was publicly degraded before a gawking crowd. His insignia medals were stripped from him, his sword was broken over the knee of the degrader, and he was marched around the grounds in his ruined uniform to be jeered and spat at, while piteously declaring his innocence and his love of France above cries of “Jew” and “Judas!” It is a ceremony that seems to belong to some older, medieval Europe, of public torture and autos-da-fé and Inquisitions.

Yet it took place in the immediate shadow of the monument of modernity, the Eiffel Tower, then six years old, which loomed at the north end of the Champ-de-Mars. The very improbability of such an act’s happening at such a time—to an assimilated Jew who had mastered a meritocratic system and a city that was the pride and pilothouse of civic rationalism—made it a portent, the moment where Maupassant’s world of ambition and pleasure met Kafka’s world of inexplicable bureaucratic suffering. The Dreyfus affair was the first indication that a new epoch of progress and cosmopolitan optimism would be met by a countervailing wave of hatred that deformed the next half century of European history.

The Dreyfus affair never goes away, and is the subject of a brave new book by the novelist and lawyer Louis Begley, “Why the Dreyfus Affair Matters” (Yale; $24). Brave because Begley wants to use the occasion not for French-bashing, or for reciting the enduring history of European anti-Semitism, bleak as it is, but as a pointed warning and reminder of how fragile the standards of civilized conduct prove in moments of national panic. The Dreyfus affair matters, he believes, because we have, in the past decade, made our own Devil’s Island and hundreds of new Dreyfuses—the Dreyfus affair matters because we’re still in the middle of it. Begley, as he recounts the story of the Parisian fin-de-siècle legal drama, also spends many pages showing that among the prisoners in places like Guantánamo are many Dreyfuses—innocent, as he was, and, on the whole, much worse treated. He wants to arraign Americans, and particularly those who fetishize the Dreyfus case without grasping its principles: that every accused person should be able to face his accusers in a fair trial, and that national panic makes bad policy and false prisoners.

Yet a parallel can be potent without being, point by point, persuasive: Dreyfus was not the Faceless Foreigner but the Enemy Within. Far from being faceless, he was all face: the haters never tired of describing and drawing his hideousness. “His face is grey, flattened and base, showing no sign of remorse . . . a wreck from the ghetto,” the journalist Léon Daudet wrote. That hideous degradation ritual is at the heart of the Dreyfus affair; it was meant to be public and demonstrative—this is what happens to faithless Jews. The degradation of the prisoners at Guantánamo was essentially private and utilitarian: talk or we’ll subject you to unspeakable humiliations.

The Dreyfus affair matters not because of the parallel with our time but because it was one of the first tests of modern pluralist liberalism and its institutions—a test that those institutions somehow managed to pass and fail at the same time. In France a century ago, the system finally worked, as they used to say after Watergate. The good guys rallied around, the courts did their job, Dreyfus was vindicated and came home to his family. Yet what the system exposed as it worked was, in a way, worse than the injustice it remedied. It showed that a huge number of Europeans, in a time largely smiling and prosperous, liked engaging in raw, animal religious hatred, and only felt fully alive when they did. Hatred and bigotry were not a vestige of the superstitious past but a living fire—just what comes, and burns, naturally.

The typical modern media melodrama involves the courtroom: from Scopes to O.J., the dramatic proscenium of a trial gives structure to the spectacle of modern life. The Dreyfus affair, in some ways the first of those dramas, held France spellbound in part because it included not one but at least six trials; to keep track of them—the trials and courts-martial of Dreyfus defenders and accusers, as well as his own—is exhausting. Just last year, though, George R. Whyte published in paperback his remarkably complete documentary compendium, “The Dreyfus Affair: A Chronological History” (Palgrave-Macmillan; $37); the best extended narrative in English is still Michael Burns’s account in “Dreyfus: A Family Affair,” published back in 1991.

Alfred Dreyfus came from Alsace, which was part of his luck and then part of his tragedy. In 1870, the armies of Prussia and Germany invaded France and routed the government of Napoleon III. As spoils of war, the Prussians took most of Alsace and Lorraine, the northeastern provinces; the figure of Strasbourg in the Place de la Concorde was draped in black (and remained that way until after the First World War). This meant that the Jews of Alsace were both frustrated foreigners and beloved native sons. Even though Alsace and Lorraine were only dubiously “French” in the first place, their loss drove Frenchmen mad.

Above all, many Frenchmen thought that France had lost the war because it had turned away from the faith. For the Paris of Dreyfus’s time was really a city of two towers—across the city from the Eiffel Tower, the Basilica of Sacré-Coeur, with its monumental bell tower, had been slowly rising since the eighteen-seventies, as a sort of counter-monument, done in a gargantuan Romanesque manner then seen as the true mystical style of Franco-Catholicism. It was dedicated explicitly to the expiation of the sins of 1870 and the redemption of France by a restored Catholic Church. Apollinaire used the two towers—one the shepherd of modern life, the other the fountain, the bleeding heart of the past—to structure his vision of the city in his great poem on Paris, “Zone.”

A saner response to the war had been to reform and democratize the French Army, by making its officer ranks meritocratic and national rather than aristocratic and narrow. Dreyfus, as a Jewish son of Alsace, took advantage of these reformist impulses, and came to Paris to enter the French military academy and become an artillery officer. He did not fit the model of the traditional duelling and debauching officer, all scars and debts, but represented a new model, of the officer as bourgeois family man. He eventually settled with his wife and two children in a grand apartment on the Avenue du Trocadéro.

It was in that city of two towers, one finished and one rising, that, in the fall of 1894, Dreyfus became the accidental victim of a stupid plot, which was not, in its origins, anti-Semitic. The French Section de Statistique—the Army’s intelligence service—had an agent within the German Embassy: a cleaning woman who every night emptied the wastebaskets of the military attaché, Lieutenant Colonel Maximilien von Schwarzkoppen, and brought the torn-up papers to her government. From the scraps, the spies reassembled a shocking memorandum, the bordereau, in which a French officer offered to sell military secrets. The nature of the secrets to be sold seemed to point to an artillery officer, and suspicion fell on Dreyfus, not least because he made regular visits to his family in Mulhouse, then still in German hands. With the normal prejudice of the secret police in favor of their own suspicions, the Statistique had Dreyfus arrested. As always, pseudo-science came to the aid of paranoia: the Statistique called on a “graphologist” for an opinion, and he testified that the lack of resemblance between Dreyfus’s writing and that of the bordereau was proof of a “self-forgery,” and prepared a fantastically detailed diagram to demonstrate that this was so.

The bordereau had actually been written by another officer, Major Ferdinand Walsin Esterhazy—one of those subjects in the history of espionage who are so obviously guilty that only the geniuses of counter-intelligence could look past them. Like Aldrich Ames and Guy Burgess, Esterhazy had done everything short of wearing a nametag on his shirtfront reading “Spy.” Staggered by gambling debts, he was the debauched son of an illegitimate daughter of an illegitimate claimant to the Hungarian royal line, and had written to a mistress at length about his hatred of the French Army. Just as no one in the C.I.A. asked why Ames had the money for a sports car, no one in the Statistique seemed inclined to wonder if a man notorious throughout the Army for being a drunk in perpetual debt might be a likelier candidate to have sold secrets than a Jewish family man.

Then black comedy was piled on stupidity. It turned out that Schwarzkoppen, the German military attaché, had begun an erotic affair with Major Alessandro Panizzardi, the Italian military attaché—it was not called the gay nineties for nothing—and that they wrote to each other in an allusive and sinister-sounding private code. One of their letters, stolen from a second source, included a reference to someone whom Schwarzkoppen called “this scoundrel of a D.,” and who had offered “plans of Nice”—though the whole thing may have been a bantering reference to another lover. (The letter ends, to give a taste of the whole, “Don’t exhaust yourself with too much buggery.”)

Despite its obviously louche tone, this letter was submitted to the judges in a “secret dossier,” which Dreyfus and his lawyers were not allowed to know about, let alone see. (One of the smaller ironies of the affair is that it involves the collision of two subcultures, ambiguous Jewish identity and the obliquities of gay “coding,” that did so much to make the modernist sensibility.) But on that evidence—a handwriting identification admitted to be based on an absence of resemblance, and a single initial in a playful lover’s note—Dreyfus was convicted and sentenced to life in prison.

If anti-Semitism didn’t start the Dreyfus affair, it fuelled it. The accusation was first kept secret, but as soon as it was made public the secrecy itself became an occasion for assault: the Army was protecting a traitor Jew. First, loudest, and nastiest among the explicitly anti-Semitic enemies of Dreyfus was Édouard Drumont, whose book “Jewish France” had already, in the eighteen-eighties, been a huge success. Drumont’s book was above all an anti-immigrant manifesto. He was responding to the waves of Jewish immigrants from Germany and Eastern Europe who had arrived in France during the previous twenty or so years, bringing with them, he argued, values and a faith alien to Christian France. In a tone familiar from today’s anti-Muslim polemics, and using the usual toxic cocktail of absurdly inflated numbers, hysterical overstatement, and guilt by association (many anarchists were Jews), Drumont managed to convince readers that France’s real crisis was the decline of Christianity. This had happened under the demoralizing pressure of modern art and culture, which was, of course, Jewish culture: the culture of bankers and speculators and atheists and decadent artists. It seemed perfectly natural—a heartbreaking irony, in retrospect—to suspect that Jews would sell out France to their spiritual home in Germany.

Drumont’s hatred was of a somewhat new kind: where for Voltaire the Jews had been evil as a relic of antiquity, for Drumont they were evil as a herald of modernity. Before, the Jews’ refusal to change was a sign of their iniquity; now their appetite for change was the sign. The more eagerly a Jew attempted to escape from Judaism, the more Jewish he revealed himself to be—a snaky shape-shifter with no allegiances to anything except clan. The Catholic Church, in turn, seized on Drumont’s ideology, and a virulent anti-Semitism became, especially in the pages of the Catholic newspaper La Croix, the new tonic note of even respectable French Catholicism. This coalition of hatred of immigrants and Catholic reaction did not put Dreyfus in a cage. But it helped keep him there.

It’s hard to remain dry-eyed when reading about Dreyfus’s next five years. Overnight the most despised man in the country he worshipped, he was torn from his wife and children and sent to rot on a tiny, desolate island in the Atlantic, in a prison altered to prevent him from ever seeing the ocean that surrounded him. (It must also be said, with Begley, that his treatment was by modern American standards benevolent. Convicted of the worst crime imaginable, selling out France to the Germans, he was still given almost all the books he wanted to read from and all the paper he needed to write on, and he used both.) Because of his always cold and correct demeanor, and in part because the regime of silence that was imposed on him at Devil’s Island left him for the rest of his life with a rasping voice, the idea has been spread that Dreyfus was an essentially mediocre, if gallant, man. The image is far from the truth; awkward and uncharismatic he may have been, but Dreyfus was what we now call deep, a serious and cultivated soul. In captivity, shackled to his bed at night, he saved his sanity by reading: he read Tolstoy, Nietzsche, the French classics, and made intelligent notes on them. More than anything, he read Shakespeare. He worked his way through all the great tragedies—eventually and laboriously teaching himself to read them in the original—and found in those stories a sense of life and a language adequate to his own condition. He copied out Othello’s lines on honor, and sent them to his wife, Lucie.

He was, as far as he knew, utterly alone and friendless. In truth, he had one supreme ally at home—his brother Mathieu, who had stayed in the family textile business, and was Alfred’s main support. Mathieu worked brilliantly and tirelessly for his martyred brother. Pretty much everyone in authority had an uneasy sense that Dreyfus had been railroaded, and many who had no particular liking for Jews still felt that anti-Semitism was something worse than false; they thought it was vulgar. Early on, Mathieu made a key ally of Auguste Scheurer-Kestner, the vice-president of the French Senate, who strongly intimated that he knew that Mathieu’s brother was innocent but could not say why. (The reason for his confidence came out later: in an incident that one would think possible only in the Internet age, one of Esterhazy’s stockbrokers had seen the bordereau reproduced in a newspaper, and at once recognized the handwriting of his ne’er-do-well client.)

Mathieu displayed a kind of genius in seeing that the case for justice was more persuasive than the case for vengeance—that it was necessary to take the position that an injustice had been done by error, rather than that an evil had been done on purpose. The barrier to his brother’s vindication, he grasped, was less anti-Semitism than the perceived assault on the honor of the Army.

For beneath the affair was a great historical transformation. Before the eighteen-seventies, European armies were understood to be made up of desperate men who couldn’t find a better job and stupid officers who couldn’t inherit a better place. Though a useful tool of empire, the army was hardly revered as an institution. But, with the late-century growth of the “open” and then of the mass-conscription army, the European army became something more than an instrument: it became the spine of honor, the sword and shield of the nation. It would not do to question its integrity, to suppose that the army was a human institution made up of good men and bad, and more inclined than most, through the habit of blind obedience and the nature of its mission, to do the wrong thing unless closely watched. Many on the anti-Dreyfusard side were prepared to admit, sotto voce, that the case against Dreyfus was not very strong. But, given that Germany posed an existential threat to France, an attack on the French Army was an attack on the nation’s future. The same forces of reform that had opened the Army to Dreyfus and raised it to a national sacre were now conspiring to keep him locked up. That was the heart of the affair, and of Mathieu’s dilemma; he had to find a way to liberate his brother without challenging the honor of the Army—which was, despite it all, still as sacred to his brother as to everyone else.

The unmaking of the Dreyfus case is a very long story—so complex, and taking place at such a snail’s pace and in such wayward directions, that almost no one has ever been able to relate it simply. Essentially what happened is that the evidence of Dreyfus’s innocence that Mathieu unearthed became too overwhelming to deny, and progressive politicians came into power who were ready to act on that evidence. There were nearly as many reversals as advances. A lieutenant colonel, Georges Picquart, was put in charge of the Statistique, and soon realized, thanks to an intercepted telegram, that Esterhazy was the real culprit. When he announced this in a report, he was promptly cashiered and transferred to the fringes of empire by panicked superiors, and then imprisoned on trumped-up charges of revealing other secrets. (Picquart is one of the truly admirable figures in the story—anti-Semitic by inclination and background, he was a friend of Mahler, and, above all, a dutiful officer, who had followed the facts, despite the consequences.) Meanwhile, another member of the Statistique, Joseph Henry, began to forge, crudely, new documents that pointed to Dreyfus—though it’s unclear whether he did this in conspiracy with Esterhazy or out of a conviction that Dreyfus was guilty and a feeling that it did no harm to put a thumb on the scale of justice.

It was then, too, around 1898, that the affair became the Affaire, the preoccupation of all educated France. It suddenly took in not just the Army and the Jews but the central question of modern French history: nation or republic? Was one’s loyalty to be given to the nation as a repository of a heritage, mystical and ethnic in nature, or to a set of abstract ideals achieved by reason and available to all? These arguments split the upper and the educated classes—dividing even the Impressionists, the anti-Dreyfusards Degas and Renoir drawing daggers with Pissarro and Monet.

Stirred into movement by Mathieu, the entire liberal establishment, frightened and feeble at first, began to enlist in the cause; the great left-wing politician Jean Jaurès joined, then the publisher and future Prime Minister Georges Clemenceau, then the novelist Émile Zola—none of them Jewish, but with a certain self-interest in seeing the right done down, and, above all, with a passion for republicanism and a sense that it could not survive this parody of justice. They insisted that they were asking France to be faithful to its own declared rules. Esterhazy, in a typically reckless though well-calculated move, demanded a court-martial, which, held in secret, ended, predictably, with his acquittal.

It was this trial, not Dreyfus’s, that caused Zola, the morning after, to publish “J’Accuse,” in a daily newspaper that Clemenceau ran—detailing all the evidence of Dreyfus’s innocence and (breaking, at last, with the playbook) arraigning the Army for deliberately covering it up. Zola was tried for criminal libel, and at his trial Clemenceau eloquently addressed what Mathieu had always seen was the problem: “Above all beware of this line of the reasoning . . . : ‘It is possible that Dreyfus was convicted illegally, but it was justly done; that is enough.’ . . . It is a serious error. . . . See to it that the supremacy of the law is undisputed, and through the law rid our hearts of this respect for reasons of state that is absurd in a democracy.” (Zola was convicted, and fled the country, until the government fell and a pardon arrived.)

At last, the appeals worked their way to the top of the French courts, and a second Dreyfus court-martial was ordered. Dreyfus was snatched from his parched exile and brought home. Ignorant through his long isolation that anyone outside of his immediate family was even aware of his martyrdom, he sat down in his prison cell at Rennes, where the new court-martial was to take place, and read the transcripts of the secondary trials, and discovered that men of accomplishment had risked their welfare for his vindication. He wrote later, “A deep feeling of gratitude and admiration arose in my heart for all the courageous men, scholars and workers, great or humble, who had thrown themselves valiantly into the struggle for the triumph of justice and truth, to uphold principles which are the legacy of humanity.”

The fix was still in, of course, and, despite the overwhelming evidence, Dreyfus was convicted again—but with a reference to “extenuating circumstances.” This was what psychiatrists used to call “a cry for help.” It meant that though the Army couldn’t be seen to overturn its own verdict, it knew that it was wrong. The newly installed, liberal government immediately offered Dreyfus an amnesty, which would see him freed, albeit not yet reinstated in the Army, on the tacit condition that he not protest too hard any longer about his innocence.

Understandably, the activists who had risked their reputations on Dreyfus’s vindication argued against assenting to an amnesty, and for continuing to appeal the case, despite the risk of further imprisonment. Poor Alfred was uncertain about the right way to act. It was left to the clearheaded Mathieu to convince them all that the immediate amnesty was as close to an admission of wrongdoing as you could hope to get. (Meanwhile, the right-wing loonies claimed that “extenuating circumstances” was really a reference to an “annotated memorandum”—the Obama birth certificate of the day—that contained notes in the Kaiser’s handwriting gleefully savoring his Jew collaborator, a memorandum that couldn’t be shown in open court out of fear that it could start another war.) Behind all this, the hopes for the upcoming Paris Exposition of 1900 were probably central to the government’s panic. The Zola trial had awakened consciences—and a certain amount of French-bashing—in England and America. The new Exposition put the prestige of France, and income for Paris, on the line, and continued persecution of Dreyfus might have kept some foreigners away.

Dreyfus was lionized by the left, and went home to the grand apartment. Bit by bit, the entire web of injustice was unwoven: subsequent trials not only reinstated him in the Army but gave him (and Picquart) promotions and, eventually, the Légion d’Honneur, the highest decoration in France. In 1905, the Roman Catholic Church was more or less disestablished in France, and equality among Protestants, Catholics, and even Jews imposed, largely because of the grotesque role that the Church and La Croix had played in the persecution of Dreyfus. When the First World War broke out, Dreyfus went on to serve as an artillery colonel in Paris and at Verdun. He died in 1935, a man honored and respected both as a soldier for France and as a martyr for freedom.

In this sense, what’s oddest about the Dreyfus affair is its unequivocally happy ending. A good man was the victim of a horrible injustice, decent people rallied to his side, the bad guys responsible for it were exposed, the good guy got to come home and was honored by the same people in the same place where he had been dishonored. If the beginning of the Dreyfus story is Maupassant, and the middle Kafka, the end is Victor Hugo, a victory of the romantic, progressive imagination: wrongs can be righted; in the long run things work out for the best. Dreyfus’s restoration to bourgeois comfort was so complete that a famous Paris story has him saying placidly at a dinner party, when told about a rumored adulterous affair in his circle, “Well, what I always say is: where there’s smoke, there’s fire.”

The trouble was that, like most happy endings, the happy ending was not the end. The good guys won in a way that only made the bad guys worse. As with Watergate, the immediate outcome of the affair gave a misleading impression of unanimity; in truth, while the good guys thought the other guys had absorbed it as a lesson, they had merely resented it as a defeat. Though Dreyfus won his place back, in 1908 he was the victim of an assassination attempt by a follower of Charles Maurass, who had succeeded Édouard Drumont as the leading authoritarian anti-Semite in France. In any modernized country, the backward-looking party will always tend toward resentment and grievance. The key is to keep the conservatives feeling that they are an alternative party of modernity. (This was Disraeli’s great achievement, as it was, much later, de Gaulle’s.) When the conservative party comes to see itself as unfairly marginalized, it becomes a party of pure reaction, which is what happened to the French right after Dreyfus. Instead of purging the anti-Semites, people on the right decided to rally behind them. They came to hate the idea of the Republic itself. When Maurass was sentenced for collaboration after the Second World War, he cried, “It’s the revenge of Dreyfus!” It wasn’t true. But Vichy had been four long years of the revenge of Drumont.

Three “readings” of the affair, all by Jews, have long contested its meaning; Begley raises all three. The first is Theodore Herzl’s, which gave birth to modern Zionism. Herzl had been present at the Dreyfus degradation on that January day, as a journalist for a Viennese paper, and if one moment engraved his sense that Jews could never find a safe home in Europe this was it: “It has been established that justice could be refused to a Jew for the sole reason that he was a Jew.” Dreyfus, the perfect case of attempted assimilation, “signifies a strategic position which . . . is already lost.” This insight, repeated and made programmatic in the Zionist project, was seemingly vindicated by what happened during the Second World War, when the members of the Dreyfus family, who had fought for France so often and so patriotically, were, like all French Jews, forced into hiding; Alfred’s favorite granddaughter, Madeline, a Resistance fighter, was deported by the Vichy state and died at Auschwitz, age twenty-five.

Herzl’s reading was that the affair marked the end of a credible idea of assimilation; Marcel Proust’s was that it marked the end of a credible idea of aristocracy. The Dreyfus affair acts as a kind of earthquake in “Remembrance of Things Past,” destroying Proust’s belief in a natural merger of the educated middles, mostly Jewish, and the aristocratic heights. Proust’s ideal was the aesthete’s version of the progressive dream, Manet’s version of Mill: the bourgeois would be encircled by the wise and the witty and the wellborn, and their petty prejudices would fall. This happy merger of intellect and grace, symbolized in Proust by the figure of Swann, the Jewish flâneur with a love for Vermeer, is, as Proust says, “retarded” by the affair. It largely accounts for the difference in tone between the melancholy but high-hearted world of the early chapters in Proust’s series, where Swann is free to roam between the Faubourg Saint-Honoré and the demimonde while still being a trusted Jew among the Boulevard Jews like Proust’s family, and the straitened and suspicious social circumstances in the last books. Proust had always expected his aristocrats to think stupidly; he just didn’t expect so many to behave so shabbily.

Yet these sad readings are not the only plausible ones. Léon Blum, the Socialist politician who began his public career during the affair and, in 1936, became the Prime Minister of France, insisted that the Dreyfus affair was the moment that truly established the emancipation of the Jews, and their right to play a full role as citizens—it was what allowed a Jew like him to become Prime Minister. (The French philosopher Emmanuel Levinas, born Jewish in Lithuania, liked to quote his father: “A country that tears itself apart to defend the honor of a small Jewish captain is somewhere worth going.”) The real meaning of the affair, for the French left, lay in its vindication of the rights of man and of an ideal of cosmopolitan citizenship, open to all. Certainly, France’s republican governments have been far more inclined to entrust Jews with power than any other modern state. After Blum, there was Mendès-France, the most admired Prime Minister of the Fourth Republic, and today, in the Fifth Republic, the President, his foreign minister, and his national-security adviser are all, by Vichy’s definition and most others, Jews. In this view, the persistence of anti-Semitism is not an argument against cosmopolitan citizenship; it is an argument against the persistence of anti-Semitism.

Begley, for his part, asks why Dreyfus wanted to go back into the Army that had betrayed him. As well ask why Rosa Parks didn’t just stop riding buses. The Dreyfus family had suffered as Jews and understood that they suffered as Jews; they still lived out their lives as French men and women, and had no ambition except to continue to live their lives as French men and women. How can French Jews accept French law and lore, and not be haunted by the Drancy internment camp? It is a condition of being modern that our double and triple identities look weird from the outside but are the only kinds that feel authentic from the inside. The passionately nationalist Québécois who listens exclusively to Metallica and AC/DC; the Muslim fundamentalist with the satellite dish—from outside, we wonder how they reconcile the contradictions. But they don’t have to reconcile the contradictions in order to cope with reality. The contradictions are themselves the form that a reconciliation with reality takes.

Of all the readings of the Dreyfus case, the sanest still seems to be the reading of the French socialists and liberals, almost none of them Jewish, who first took it up passionately: an innocent man had been railroaded by villains, who took advantage of ethnic prejudice in a Catholic country. It was done in defiance of the plain rules and traditions and procedures of the country’s own military order and judicial system, and had to be remedied by them. After some time, though with less clarity than one would have liked, and with more fudge around the edges than was ideal, this was done. The lesson to be learned was the lesson that Clemenceau had tried to teach the jury at Zola’s trial. The urge to protect the nation from its enemies by going around the corner to get them is natural, but what you get is usually not the enemies, and, going around the corner, you bump into something worse. Breaking the law to defend the nation ends up breaking the nation. Sometimes long stories have short morals. ♦

ILLUSTRATION: LEONARD DE SELVA/CORBIS

LEGITIMACY, POWER & FREEDOM: CONLAW

What's Conlaw about?

It's about how any society organizes itself so people can live with in it.  When they no longer can, the results are dire; either that or the basic rules of the game have to change.  We've had our civil war; now we use the Court to make changes for us, the Amendment process being a bit too slow and controversial for some issues.  So we take a nibble here and a nibble there.  These bites mean a lot to those who either bite or get bitten, but better a bite than a meat-axe approach.  Tiny bites can be reasonably well defined.  The meat axe eliminates limbs and bone, as well as flesh.  The bigger the swipe, the more comes off.

The ancient Aztecs cut the heart out of sacrificial victims to keep their society going.  To the Aztecs, the ones who didn't have their hearts cut out, at least, it was legitimate for the governing power to sacrifice some for the many.  Probably seemed perfectly logical to people who believed their gods needed to be propitiated.  For awhile it must have seemed as though the system worked.  We believed things that turned out to be untrue, as well.  See the various Holocausts; ours was slavery and Jim Crow.  The Germans had theirs.

We thought ours a legitimate exercise of government power for ages.  So did Hitler, for a shorter period. Now we place more emphasis on individual freedom. 

How did we get from there to here?

Well, we had a civil war and a civil rights movement that also took many years to develop and climax.  We're still working on Jim Crow.  Maybe a few more years, as in biblical years.

We also had an experience with Hitler, from whom we learned.  The irony is that he learned some of his racial beliefs by looking at us and our eugenics movement, of which O.W. Holmes, Jr., was a believer.  The idea here was that some people were better than others.  White supremacy, white Anglo-Saxon Protestant supremacy, are the main examples, but there are many more.  Any time you start indulging in the belief that you and yours are somehow better than them and theirs because, let's say, you got here first, so let's pull up the ladder, you're going down that dangerous road, aren't you.

It takes a long time for people to wash out long ingrained preconceptions, generations in fact, like some indelible dye.

Or so it seems to me.

During our colonial period, we began to regard the British system of monarch and corrupt parliament as illegitimate, with well-known results.  See the Declaration of Independence and Fourth of July.

Once a government is seen as illegitimate, it's done for.

In China, each new dynasty supplants a corrupt former dynasty and embarks on the same-old, same-old, with different rulers, that's all.  No sense sitting atop a dynasty if you can't take care of your own, right?  And yourself?  So the teams change, but the stadium and the league host the same game.

In China, when legitimacy has been frittered away, those opposed to the dynasty point to the latest flood, famine, earthquake, or other disaster as proof that the gods are no smiling on the Emperor.  Sayonara Emperor, to borrow a term from across the water.

In Britain, they kept the monarch but eliminated his/her political power.  Old power in new bottles.  Parliament.  More democratic that way.

We have elections to keep the peasants in line.  Oh, drat, another one gone haywire:  Jefferson-Adams, with Burr in there someplace, I forget, Hayes-Tilden, Bush v. Gore.  We carry on, hoping that time will sort things out, since we don't want to shoot up the place.

Maybe not quite legit, but better than another civil war.

Bush v. Gore, the peace that ensued, can be chalked up to the adage, "A bad peace is better than a good war." 

Cheaper, too.