Sheridan: Con-Law

GOOGLE DOODLE PATENT

Dunno 'bout you, but I love seeing the changing Google Doodles, the logos representing historic figures and other cultural features. The Christian Science Monitor has an article noting that Google founder Sergei Brin has been awarded a patent on the idea of using the variable logo as a means of enticing viewers to his site, called Google.com.

LIARS!

Nice article by Robert Barnes in WaPo on a recent 9th Circuit decision holding that not all lying is unprotected speech:

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Otherwise information theorists would be in big trouble when they wrote things like this on the blackboard:

"This sentence is false."

We can't risk having the polizei going around arresting professors having a good time.

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Not to mention statisticians. You know, there are three kinds of lies: lies, damned lies, and statistics.

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And the three most frequent: "I love you," "The check is in the mail," and I forget.

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The decision concerned a pathological liar who claimed he was a decorated war hero. Real decorated war heroes hate it when liars falsely cover themselves in glory by claiming service and decorations they haven't won. We all like to look good, but these liars take a short-cut that real vets think ought to get them jail time. We don't have prisons enough to take care of ordinary liars.

Here, in 2008, just before the collapse not only of the bank, but Wall Street in general: "let me sell you this Lehman Brothers bond; it's investment grade, rated primo by three ratings agencies: S&P, Moody's, and Fitch.

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Is lying protected speech? Military-medal case on track for Supreme Court

By Robert Barnes, Sunday, March 27, 6:14 PM

Why do we lie? Let Alex Kozinski, the chief judge of the U.S. Court of Appeals for the 9th Circuit in San Francisco, count the ways.

“We lie to protect our privacy (‘No, I don’t live around here’); to avoid hurt feelings (‘Friday is my study night’); to make others feel better (‘Gee, you’ve gotten skinny’); to avoid recriminations (‘I only lost $10 at poker’),” Kozinski wrote recently in a case about an inveterate liar named Xavier Alvarez who, just to drive home the point, is also known as Javier Alvarez.

Kozinski listed 28 other reasons we avoid the truth, including to “avoid a nudnick” and to “defeat an objective (‘I’m allergic to latex’),” and ending sweetly with “to maintain innocence (‘There are eight tiny reindeer on the rooftop’).”

Kozinski’s entertaining treatise was in service to his point about the Constitution.

“If all untruthful speech is unprotected . . . we could all be made into criminals, depending on which lies those making the laws find offensive,” he wrote. “And we would have to censor our speech to avoid the risk of prosecution for saying something that turns out to be false.

“The First Amendment does not tolerate giving the government such power.”

Kozinski’s is the first appeals court to examine a law that seems likely to be on the way to the Supreme Court: the Stolen Valor Act, passed by Congress in 2005 to deal with an apparent proliferation of people falsely claiming to be military heroes.

The act allows a fine and/or a six-month prison term for someone who “falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.”

The penalty increases to a year in prison if the person lies about a Purple Heart, a Medal of Honor or another particularly high honor.

There’s no question Alvarez lied. After winning a seat on Southern California’s Three Valleys Municipal Water District board of directors in 2007, he introduced himself by saying: “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”

None of that was true. But a district judge overturned Alvarez’s conviction by declaring the law a violation of the First Amendment. A panel of the 9th Circuit agreed, and earlier this month the full court refused to reconsider the panel’s decision.

Judge Diarmuid O’Scannlain and six other 9th Circuit judges said their colleagues were wrong. He said the decision to find the law unconstitutional “runs counter to nearly forty years of Supreme Court precedent” in which the court “has steadfastly instructed that false statements of fact are not protected by the First Amendment.”

Both sides cite the court’s landmark free-speech cases. Judge Milan D. Smith Jr., who agreed the law was unconstitutional, said 1964’s New York Times Co. v. Sullivan made clear that “false speech is not subject to a blanket exemption from constitutional protection.”

He said the court has never included “false statements of fact” to be among the classes of speech unprotected by the First Amendment. He noted that as recently as last year’s decision in United States v. Stevens, the court’s list of “well-defined” unprotected speech included only “obscenity, defamation, fraud, incitement and speech integral to criminal conduct.”

O’Scannlain and the dissenters point to cases decided after Sullivan, including Gertz v. Robert Welch, Inc ., in which the court said that “there is no constitutional value in false statements of fact.”

Judge Ronald M. Gould said he believed the Stolen Valor Act could be sustained because “the power of Congress is necessarily strong” in a military context and there is a “lack of any societal utility in tolerating false statements of military valor such as those made by Alvarez.”

Gould acknowledged that each side can make a case from the words of Supreme Court precedents and said it “remains open for the court” to clarify its First Amendment doctrine.

That seems likely. The U.S. Court of Appeals for the 4th Circuit is scheduled in May to hear an appeal from a decision by a Virginia district judge that the law passes constitutional tests. A federal judge in Denver found just the opposite.

Until then, the task of punishing the liars might be up to such phony-hunters as Doug Sterner of Alexandria, profiled by The Washington Post last year, and Web sites such as ReportStolenValor.org. There appears to be no shortage of leads.

barnesr@washpost.com

© 2011 The Washington Post Company

BROAD CONCEPTS: LIBERTY, JUSTICE, DEMOCRACY, EQUALITY, DUE PROCESS

Interesting chat on Conlawprofs listserv:

Me:

http://tinyurl.com/484453w

Succcinct quote pulled from Tom Friedman's NYT column today, link above, on the lid coming off the pot in the middle East, his analogy, emphasis added:

"Democracy requires 3 things: citizens — that is, people who see themselves as part of an undifferentiated national community where anyone can be ruler or ruled.

It requires self-determination — that is, voting.

And it requires what Michael Mandelbaum, author of “Democracy’s Good Name,” calls “liberty.”

“While voting determines who governs,” he explained, “liberty determines what governments can and cannot do.

Liberty encompasses all the rules and limits that govern politics, justice, economics and religion.”

And building liberty is really hard."

I kinda liked that, especially Mandelbaum's definition of 'liberty,' which we disguise by calling it 'substantive due process". It can take us all year to get that across, we hope.

I think it was Patrick Henry who said it best:

"Give me substantive due process or give me death!"

Then they strangled him...

rs

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What started the discussion was this:

Me:

http://tinyurl.com/4rwsepq

In the above item from the UK's Guardian, British commentator Simon Tisdall, the assistant editor, notes that the "freedom flu" has now broken out in Syria; in looking at the causes he refers back to "The Plague," by Albert Camus, of French Algeria, which refers to unmet needs and "grievances" as the cause of sometimes much needed revolutions such as we're now seeing and participating in, e.g. Egypt, Libya, and others, no doubt under the radar, or at least, my radar. Tisdall notes an address by Defense Secretary Robert Gates urging Syria's army to mutiny, as Egypt's did in Cairo while the people took the lead in rising up, as they seem about to do in Daraa and Damascus, if not massacred first by the boy-king, the former dentist, Bashir Al-Assad.

Which brought me back to our own successful revolution and the happy circumstance that when it was over, the framers had the relative freedom of time to construct the aftermath, in what now seems a leisurly pace, indeed. After the first meeting to address the problems of functioning in bankrupt fashion under the Confederation, in Annapolis, in 1786, where only five delegates bothered to show up, the matter was postponed until the following year in Philadelphia, followed by another period to allow voting on ratification by the citizenry, not the states. We went into business under the new constitution in 1789, in N.Y., if recollection serves, on Wall Street, of all places...

We were left free to determine our own fate. Our revolution was not hijacked, the way, say, the Philippines' was, in 1898, by us.

By contrast to ours, as Hillary Clinton, the Secretary of State, pointed out after Tahrir Square, Cairo, revolutions have a way of being hijacked, citing Iran's 1979 overthrow of the hated Shah, backed by the Great Satan, of course, just as we've backed so many other villains in the name of stability over liberty, freedom, justice, democracy, equal protection of law, due process of law, criminal justice, social justice, and economic justice, meaning the chance to make a living outside the confines of crony capitalism and the wholesale looting of a nation's assets.

All the good stuff has been reserved for us, thank heavens; the rest of the world can take the hindmost; our policy. Well, it's served us, until now, when we find ourselves hated in many places abroad, especially the Middle East, and we have to decide whether these are "universal" human values, as refreshingly urged by the president, which drives the king of Saudi Arabia to considerable discomfort, he having sent in tanks to support the ruling family in neighboring Bahrain, whose Pearl Square rebellion seems to have come to little if anything so far.

I was chagrined to see the beautiful Pearl Monument, Bahrain, blown up by the government. It reminds me of the Taliban blowing up the Buddhist statuary that stood carved into the hills of Bamiyan, Afghanistan, for 800 years or so. Western technology is apparently not all bad, even in the more fundamentalist camps. We make the Saudi jet planes and tanks, of course, selling them to autocrats as part of the foreign aid package, favoring stability over, well, I don't want to repeat myself.

These weapons are less used against external threats than internal, their own people.

Our guns are pointed at their people.

For stability.

Keeping people down keeps them stable, I guess, at least for the time being.

Conlaw represents to me, among other things, the state of the soul of a country. The only problem is that the way we treat it, we focus only on Conlaw as a domestic proposition, when the fact is that how we behave abroad has a lot to do with whether our soul, to use the ancient religious term in a modern political context, but it seems to work, is healthy or corrupted. Mark Twain viewed our first acquisition of an overseas colony, The Philippines, as a corruption of the American soul in the name of what? Empire? Well, perhaps our soul had darkened with the western expansion at the expense of Mexico and the Native Americans, not necessarily in that order.

Our present excuse is to keep the world economy, critically dependent on Middle East oil, functioning, seemingly at all costs, hence the all-important stability. I get that, have benefited from it, as we all have, but now realize that there are greater prices that we will continue to have to pay than the current $4.00+/- cost of a gallon of gasoline at the pump, a bargain compared to Europe. Like the three wars we're leading: Iraq, Afghanistan, and Libya, as in lives, treasure, and international respect, spotty at best, wars so far neither winnable nor avoidable, at least by us.

Those folks seeking freedom in the Middle East may be relatively powerless, because until now unable to organize, but they're not stupid, and they're keeping score. China, apparently realizing that the same applies to its population, has taken increasing measures to block news of the Middle East rebellions from entering and being discussed, a losing proposition if ever there was one. While China's three-decade economic miracle is admirable, especially when compared to what went before, I don't admire its One Communist Party soul, or the fact that a relatively small percentage of people get the cream while the rest are forced to lick the pot. This almost reminds me of us, what with our own economic near-meltdown following the advent of the Great Recession in 2008.

It's been said that we're an introspective people who do look to the state of our soul, as though it were real. Perhaps soul means "good conscience", the opposiste of hypocrisy, consistency with our professed values.

I feel as though we've been given a wake-up call, which is bound to have an effect on fundamental attitudes over the long-haul, and thus must shape Conlaw as we proceed from here, whether in the form of cases in court (less predominant, I imagine, because of the justiciability doctrine declining to consider political matters), but certainly in our External Constitution, the one in charge of foreign affairs, presuming, of course, that it exists.

Now, that would be an interesting course in Conlaw, wouldn't it? It's probably called something else, like U.S. International Relations Policy, or somethin.'

rs

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Further posts in the thread:

http://tinyurl.com/4emhfwk

Well, since we go to war using as an excuse the 'grossest' of concepts, we pledge allegiance to the U.S. of A. proclaiming "with liberty and justice for all," and everyone seems to have some concept of these, it seems reasonable for us well-read types to talk about it too, since this is what we teach, at bottom.

Since we happen to be noting the Middle East for the moment, the scholar's comments above seem worth noting. He is: Dr. Hayrettin Yücesoy, an Associate Professor of History at Saint Louis University and author of Messianic Beliefs and Imperial Politics in Medieval Islam (Columbia: South Carolina University Press, 2009) and Tatawwur al-Fikr al-Siyasi inda Ahl al-Sunna (Amman: Dar al-Bashir, 1993).

The gist seems to be that many of our preconceptions concerning the Middle East are undergoing a much needed revision in light of what we're seeing going on. Many of these are expressed in terms of admirable gross concepts.

One has to start, and end, someplace.

rs

On Mar 27, 2011, at 8:14 AM, G., Mark wrote:

I'll confess that a) I've probably said this before and b) that talk of liberty and democracy in the abstract do not strike me as particularly useful. I rather suspect most people on this listserv, most people in the tea party (though they might say they are republicans, not democrats) and most people involved with Move-On believe in liberty and democracy. Moreover, I think the vast majority can tie their understanding of democracy and liberty to some traditional understanding of liberty and democracy. There are different understandings of liberty and democracy out there, as well as different conceptions of the relationship between liberty and democracy. We will make more progress, if we can make progress in these matters, debating our different conceptions of liberty and democracy (and equality, for that matter), than talking about what Ian Shapiro has wisely called "gross concepts."

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To: Mortimer S. Cc: CONLAWPROF Prof list Subject: Re: Democracy, Liberty

Exactly; Hitler got a lot of votes in 1932.

In light of this, it seems at least somewhat ironic that the U.S. went to (or at least excused) war in Iraq and Afghanistan with the stated goal, among others, of establishing 'democracy' rather than the broader, deeper, and perhaps more defensible goals of 'justice' or 'liberty.'

Liberty for tribal members, e.g. Libya, might be to have their tribe recognized as equal to others and for tribal justice.

Democracy as we prefer it is a Western product; justice as the Middle East sees it may certainly require popular control but not necessarily in the tradition that we trace to ancient Greece and Rome via Europe and Britain, through us.

In fact that may be just what they don't want.

rs

On Mar 27, 2011, at 6:35 AM, Mortimer S. wrote:

So liberty is actually morally prior to democracy in the American and other constitutional democracies. Liberty requires democracy, but democracy does not require liberty -- illiberal democracies are possible, very dangerous, and a real risk in the Middle East.

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Which brings to mind an old expression to the effect that "an ounce of history is worth a pound of logic."

Holmes opened his "Common Law" with a similar statement (from memory): "The life of the law is experience, not logic."

To succeed, rebels anywhere need a banner, literally and figuratively, to rally supporters around. "Freedom!" as shouted by Robert the Bruce in the movie, is a good slogan, as was the French "Liberte, Egalite, Fraternite." Unfortunately for the French, their initial success in removing the monarchy went haywire when Napoleon staged his coup and decided that being a king wasn't enough, he needed to become an emperor, a venture that led to Moscow and Waterloo.

In our case, we were fortunate on many counts to have had the time and a period of relative isolation and peace to slowly craft the device which is a special interest of ours, here. We were then forced to make decisions as we go along as to what counted most in favor of liberty, justice, democracy, equality, due process, etc. That we've managed for this long is no mean feat, and not entirely an intellectual one, given the conflicts we've had to fight to keep the project moving forward, slowly and not always steadily.

It seems that we can take very little for granted for any long period of time, for as that other chestnut has it, "no bad idea ever really goes away."

On Mar 27, 2011, at 2:04 PM, Sean Wilson wrote:

... Wittgenstein can help us here. Mark's point about "gross concepts" is the point Wittgenstein makes when he says, "don't think, look!" The point being: different cultural arrangements of "liberty" are possible, and that watching, studying (and thinking about) the actual cases of these orientations can best serve to break through the confusions caused by believing in, and throwing around, a-priori notions.

Translation: "liberty" is a behavior in the way that dance is. Imagine one saying: democracy isn't possible without "dance." And imagine all the things we might see both in other countries and ours as time goes by that would have baptism under the idea "dance." And while it is indeed possible to say that certain kinds of dance are preferable to others (see Wittgenstein on connoisseur judgment), it is also the case that variations in dance may broaden our original picture of the idea. We might come to see the original picture only as an EXAMPLE of the idea. That's the key.

And so, we have absolutely nothing to fear with watching how different cultural orientations of ideas play out -- be they "theirs" or ours over time. The mistake is to assume that the truths lie in logic or definition. Always, they lie only in grammar and sense.

Regards and thanks.

Dr. Sean W.

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I know that it isn't fashionable to care about the history or etymology or meaning or "essence" (to be even more heretical) of legal or political concepts, but I think that is worth the trouble to work these things out, if we want to establish justice or even just a more coherent legal and political discourse.

There are, of course, different conceptions of liberty and democracy out there, but some are more valid than others and I think that disentangling the concepts we are dealing with is the first step toward reasoned dialogue.

"Liberty" was the organizing principle of the American Revolution (and many others) and of the U.S. Constitution (and many others) and is a particularly useful idea, rooted (etymologically and historically) in the idea of equal citizenship under law. Ideas like this lose value when tendentious readings separate them too much from their origins.

So U.S. constitutional scholars should think seriously (I would argue) about what it would mean to "secure the blessings of liberty" and when tea party activists or move-on enthusiasts (for example) claim "liberty" as their goal, they should be prepared to explain how their conceptions of liberty relate to the concept in its more abstract sense. The same is true of constitutional law professors.

Of course partisans will try to appropriate widely admired values for their own factional use, but when these uses diverge too much from the central meanings that made the words attractive in the first place, we should call them on it. Semantics matter. Our role as lawyers and scholars is to assist in making the conversation more reasoned and coherent than it would otherwise have been.

So to return to the earlier discussion: "democracy" is not as important as "liberty" in a just society, but fuller liberty calls for democracy, as a vehicle for reasoned deliberation and an expression of equal citizenship under law.

On Sun, Mar 27, 2011 at 11:14 AM, Graber, Mark MGraber@law.umaryland.edu wrote: I'll confess that a) I've probably said this before and b) that talk of liberty and democracy in the abstract do not strike me as particularly useful. I rather suspect most people on this listserv, most people in the tea party (though they might say they are republicans, not democrats) and most people involved with Move-On believe in liberty and democracy. Moreover, I think the vast majority can tie their understanding of democracy and liberty to some traditional understanding of liberty and democracy. There are different understandings of liberty and democracy out there, as well as different conceptions of the relationship between liberty and democracy. We will make more progress, if we can make progress in these matters, debating our different conceptions of liberty and democracy (and equality, for that matter), than talking about what Ian Shapiro has wisely called "gross concepts."

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Subject: Re: Democracy, Liberty

Exactly; Hitler got a lot of votes in 1932.

In light of this, it seems at least somewhat ironic that the U.S. went to (or at least excused) war in Iraq and Afghanistan with the stated goal, among others, of establishing 'democracy' rather than the broader, deeper, and perhaps more defensible goals of 'justice' or 'liberty.'

Liberty for tribal members, e.g. Libya, might be to have their tribe recognized as equal to others and for tribal justice.

Democracy as we prefer it is a Western product; justice as the Middle East sees it may certainly require popular control but not necessarily in the tradition that we trace to ancient Greece and Rome via Europe and Britain, through us.

In fact that may be just what they don't want.

rs

On Mar 27, 2011, at 6:35 AM, Mortimer Se. wrote:

So liberty is actually morally prior to democracy in the American and other constitutional democracies. Liberty requires democracy, but democracy does not require liberty -- illiberal democracies are possible, very dangerous, and a real risk in the Middle East.

-- M.N.S.

Regents Professor University System of Maryland

Visiting Professor Georgetown University Law Center

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I admire what Prof. Se. points out and agree that we, of all people, should apply our experience to point out what often happens if one does 'this' instead of 'that.' This is sometimes overlooked in the rioting on the theory of first things first, I presume.

Such terms as 'liberty' and 'justice' can be seen as the Constitution's Santa's gift-bags containing good things that we've learned from hard experience, plus what we will include in the future. Each participant tries to insert his own gift into the bag, not without opposition, as some of the gifts are hand-grenades.

On Mar 27, 2011, at 3:09 PM, Mortimer Se. wrote:

The framers of the United States Constitution saw their design for constitutional government as the application of reason and experience ("science", as they saw it), to the problems of law and justice. I like the project.

FREEDOM FLU

http://tinyurl.com/4rwsepq

In the above item from the UK's Guardian, British commentator Simon Tisdall, the assistant editor, notes that the "freedom flu" has now broken out in Syria; in looking at the causes he refers back to "The Plague," by Albert Camus, of French Algeria, which refers to unmet needs and "grievances" as the cause of sometimes much needed revolutions such as we're now seeing and participating in, e.g. Egypt, Libya, and others, no doubt under the radar, or at least, my radar. Tisdall notes an address by Defense Secretary Robert Gates urging Syria's army to mutiny, as Egypt's did in Cairo while the people took the lead in rising up, as they seem about to do in Daraa and Damascus, if not massacred first by the boy-king, the former dentist, Bashir Al-Assad.

Which brought me back to our own successful revolution and the happy circumstance that when it was over, the framers had the relative freedom of time to construct the aftermath, in what now seems a leisurly pace, indeed. After the first meeting to address the problems of functioning in bankrupt fashion under the Confederation, in Annapolis, in 1786, where only five delegates bothered to show up, the matter was postponed until the following year in Philadelphia, followed by another period to allow voting on ratification by the citizenry, not the states. We went into business under the new constitution in 1789, in N.Y., if recollection serves, on Wall Street, of all places...

We were left free to determine our own fate. Our revolution was not hijacked, the way, say, the Philippines' was, in 1898, by us.

By contrast to ours, as Hillary Clinton, the Secretary of State, pointed out after Tahrir Square, Cairo, revolutions have a way of being hijacked, citing Iran's 1979 overthrow of the hated Shah, backed by the Great Satan, of course, just as we've backed so many other villains in the name of stability over liberty, freedom, justice, democracy, equal protection of law, due process of law, criminal justice, social justice, and economic justice, meaning the chance to make a living outside the confines of crony capitalism and the wholesale looting of a nation's assets.

All the good stuff has been reserved for us, thank heavens; the rest of the world can take the hindmost; our policy. Well, it's served us, until now, when we find ourselves hated in many places abroad, especially the Middle East, and we have to decide whether these are "universal" human values, as refreshingly urged by the president, which drives the king of Saudi Arabia to considerable discomfort, he having sent in tanks to support the ruling family in neighboring Bahrain, whose Pearl Square rebellion seems to have come to little if anything so far.

I was chagrined to see the beautiful Pearl Monument, Bahrain, blown up by the government. It reminds me of the Taliban blowing up the Buddhist statuary that stood carved into the hills of Bamiyan, Afghanistan, for 800 years or so. Western technology is apparently not all bad, even in the more fundamentalist camps. We make the Saudi jet planes and tanks, of course, selling them to autocrats as part of the foreign aid package, favoring stability over, well, I don't want to repeat myself.

These weapons are less used against external threats than internal, their own people.

Our guns are pointed at their people.

For stability.

Keeping people down keeps them stable, I guess, at least for the time being.

Conlaw represents to me, among other things, the state of the soul of a country. The only problem is that the way we treat it, we focus only on Conlaw as a domestic proposition, when the fact is that how we behave abroad has a lot to do with whether our soul, to use the ancient religious term in a modern political context, but it seems to work, is healthy or corrupted. Mark Twain viewed our first acquisition of an overseas colony, The Philippines, as a corruption of the American soul in the name of what? Empire? Well, perhaps our soul had darkened with the western expansion at the expense of Mexico and the Native Americans, not necessarily in that order.

Our present excuse is to keep the world economy, critically dependent on Middle East oil, functioning, seemingly at all costs, hence the all-important stability. I get that, have benefited from it, as we all have, but now realize that there are greater prices that we will continue to have to pay than the current $4.00+/- cost of a gallon of gasoline at the pump, a bargain compared to Europe. Like the three wars we're leading: Iraq, Afghanistan, and Libya, as in lives, treasure, and international respect, spotty at best, wars so far neither winnable nor avoidable, at least by us.

Those folks seeking freedom in the Middle East may be relatively powerless, because until now unable to organize, but they're not stupid, and they're keeping score. China, apparently realizing that the same applies to its population, has taken increasing measures to block news of the Middle East rebellions from entering and being discussed, a losing proposition if ever there was one. While China's three-decade economic miracle is admirable, especially when compared to what went before, I don't admire its One Communist Party soul, or the fact that a relatively small percentage of people get the cream while the rest are forced to lick the pot. This almost reminds me of us, what with our own economic near-meltdown following the advent of the Great Recession in 2008.

It's been said that we're an introspective people who do look to the state of our soul, as though it were real. Perhaps soul means "good conscience", the opposiste of hypocrisy, consistency with our professed values.

I feel as though we've been given a wake-up call, which is bound to have an effect on fundamental attitudes over the long-haul, and thus must shape Conlaw as we proceed from here, whether in the form of cases in court (less predominant, I imagine, because of the justiciability doctrine declining to consider political matters), but certainly in our External Constitution, the one in charge of foreign affairs, presuming, of course, that it exists.

Now, that would be an interesting course in Conlaw, wouldn't it? It's probably called something else, like U.S. International Relations Policy, or somethin.'

rs

GRAIN OF SALT

I have a dear relative with whom I don't care to break relations but who otherwise presents certain problems involving civility. She's quite intelligent but had difficulty as a schoolchild, perhaps there was an undiagnosed learning disorder; so her formal education ended with high school graduation. She married a most intelligent fellow and their marriage produced successful children and an immensely successful business. The problem is that she has come to adopt a know-it-all-pose that drives people away, not that she cares, for it is more important to appear to know it all.

Since her husband is a devoted conservative Republican and I'm a registered Democrat since JFK days, following in the footsteps of my workingman father, and I happen to think it a misnomer to consider fairness for blacks, for instance, to be 'liberal,' when it ought to be considered simply 'fair,' we don't have much to say to one another beyond anything not touching on political reality.

When I mentioned, a la the unfolding tragedy of Japan, with the earthquake, tsunami, and nuclear near-meltdown, that the New York Times had run an explanation of the kind of reactors involved, I had to pause to acknowledge that I realized that she and her husband had refused to read NYT because it was too liberal a paper.

"Take it with a grain of salt," she advised about the article, w/o having read it, before telling me that there was nothing wrong with the Japanese power generating facility, as though she knew, citing an in-law who she felt confident would support her view.

This is a little crazy, to me, because it represents not having an intelligent discussion. There was an online, home-town bulletin board system, to which I used to contribute before it died, in which one of the crazies used to respond to posts by saying, "I agree with some of the things you say," without stating the more interesting position as to which points he was unable to agree with; these, naturally, would be the only ones of interest. You don't learn much in a discussion when someone says he agrees with you. When he tells you of a differing point of view, and the reasons why, then you're onto something. Why preach to the choir?

So when my dear relative says to take an article from the Times with a grain of salt, which I try to do with everything, anyway, and doesn't say why, other than that the source is NYT, which got its information from nuclear engineers, how does one argue that?

One doesn't if one plans to keep the peace.

Perhaps one fine day I'll think of something and let you know.

Grain of salt, my foot. Read the damned article and tell me what you think is wrong with it, is the answer.

WAR POWERS ACT

A patient reader raises the question of the constitutionality of President Barack Obama's action to order U.S. military forces to attack Col. Qadafy's forces in Libya to prevent him from massacring his rebellious subjects after 40 years of tyranny. On day one we've launched 110 Tomahawk Cruise missiles at command and control structures in Libya including anyplace we think Qadafy might be hiding, he being the head of the Libyan power structure snake.

Does the president have the power to get us into yet another war? We've got two going already: Iraq, winding down, and Afghanistan, as dangerous as ever to troops and civilians alike with an end in sight, if you believe in foretelling the future, as to which I'm a bit of a skeptic.

After the Vietnam War, Congress was unhappy at being bypassed by presidents Kennedy, Johnson, and Nixon for getting us into a war we could only lose, which we proceeded to do after killing some 58,000 of our own and around 3 million Vietnmese in what was, essentially, their civil war. Our excuse was that we were in the midst of an ideological Cold War in which if the other side won a point, we lost, a zero sum game that we couldn't afford to lose w/o losing both face (prestige), gaining shame, and persuading the world that we were a paper tiger. So on we fought. Congress voted funds annually to keep the effort funded, until finally Congress quit, circa 1973, and we bailed asap, disgracefully but thankfully all the same. I have a right-wing relative who sez we won that war but didn't know it, if only we could've fought for two weeks longer, etc., which I find hard to fathom since the war had been going on since the Vietnamese kicked out the French in 1954 (Dienbienphu) and we entered with advisers in 1966, or perhaps earlier. One of us is nuts.

Congress then passed a War Powers Resolution purporting to make it more difficult for a president to commit American troops w/o Congressional assent, but if he does, he must report. Pres. Obama, in announcing the attack on Libya four days ago that no american troops would be placed on the ground. We've had submarines and a carrier fleet offshore, carrying out missile launches and overflights where we bomb, launch missiles, gather intelligence, and perhaps strafe, but except for a fighter jet that went down, the two pilots ejecting apparently safely, no boots on the ground, just parachutes.

How does the president have the power to do this w/o consent of Congress?

The War Powers Resolution's constitutionality has been questioned because the president does have some power to conduct foreign affairs and it is difficult to see how one can practice diplomacy unless backed by a military force to give muscle to the words. The State Department is an executive department, as are the armed forces. The president is designated in Art. II of the Constitution as Commander-in-Chief of the armed services.

Pres. Obama has also reported to Congress. In his address to the nation from Rio de Janeiro, during his current South American tour, the president announced that before issuing he order he had been in close contact with the leaders of both national parties, Democrat and Republican. While there have been some objections voiced on Constitutional grounds, the fact is that foreign policy is not exclusive to either the Executive or Legislative Departments, and the Judicial has a strong policy of keeping out of political matters under the aegis of those branches of government. Lawsuits filed to have the Vietnam war declared unconstitutional were rejected.

The point is that the president and Congress deal with whatever fuzziness exists between them respecting the commitment of American troops abroad by cooperating. Sometimes the president presents Congress with a fait accompli, but that's just tough if you're a citizen or member of Congress who happens to object. It's in the nature of power that some people have it and some don't. The latter can wring their hands, protest, organize, whatever, but someone else is calling the shots, usually the president with Congress coming in later to ratify, usually because its leadership has been kept in the loop sufficiently to be onboard or otherwise sufficiently committed as to make ratification virtually assured.

Here's a Wikipedia article for further reference.

Then there's this item by Charlie Savage in the NYT:

March 21, 2011

Attack Renews Debate Over Congressional Consent

By CHARLIE SAVAGE

WASHINGTON — President Obama is facing criticism that crosses the political divide for not seeking Congressional authorization before ordering the American military to join in attacks of Libyan air defenses and government forces.

Some Democratic lawmakers — including Representatives Jerrold Nadler of New York, Barbara Lee of California and Michael E. Capuano of Massachusetts — complained in a House Democratic Caucus conference call as the bombing began that Mr. Obama had exceeded his constitutional authority by authorizing the attack without Congressional permission.

That sentiment was echoed by several Republican lawmakers — including Senators Richard G. Lugar of Indiana and Rand Paul of Kentucky and Representative Roscoe G. Bartlett of Maryland — as well as in editorials and columns published over the weekend and on Monday in conservative opinion outlets like the Washington Times editorial page and National Review.

On Monday, Mr. Obama sent Congress a two-page letter saying that as commander in chief, he had constitutional authority to authorize the strikes, which were undertaken with French, British and other allies. He wrote that the strikes would be limited in scope and duration, and that preventing a humanitarian disaster in Libya was in the best interest of American foreign policy and national security goals.

The White House also noted that Mr. Obama had met with Congressional leaders to consult about the Libya situation on Friday. On March 1, the Senate unanimously approved a resolution calling for the United Nations Security Council to impose a no-fly zone over Libya. The Security Council approved such a measure Thursday night.

Critics say the merits of the operation and its legality under international law are matters separate from the domestic legal question of who — the president or Congress — has the authority to decide whether the United States will take part in combat.

“When there is no imminent threat to our country, he cannot launch strikes without authorization from the American people, through our elected representatives in Congress,” wrote Representative Justin Amash, a freshman Republican of Michigan, on his Facebook page. “No United Nations resolution or Congressional act permits the president to circumvent the Constitution.”

Most legal scholars agree that the nation’s founders intended to separate the power to decide to initiate a war from the power to carry it out. But ever since the Korean War, presidents of both parties have ordered military action without Congressional authorization.

The divergence between presidential practice for the past 60 years and the text and history of the Constitution makes it hard to say whether such action is lawful, scholars say. “There’s no more dramatic example of the ‘living Constitution’ than in this area,” said David Golove, a New York University law professor.

Still, as a presidential candidate who promoted his background as an instructor of constitutional law, Mr. Obama appeared to adopt a more limited view of executive power when he answered a question about whether a president could order the bombing of Iranian nuclear sites without a use-of-force authorization from Congress.

“The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” Mr. Obama told The Boston Globe in December 2007.

The administration’s legal team appears to be distinguishing between a full war and a more limited military operation, on the theory that the Libyan intervention falls short of what would prompt any Congressional authority to control decisions about whether to initiate hostilities.Asked about Mr. Obama’s 2007 statement, Tom Donilon, Mr. Obama’s national security adviser, said Monday that the administration “welcomes the support of Congress in whatever form that they want to express that support.” But, Mr. Donilon added, Mr. Obama could authorize the operation on his own.

“This is a limited — in terms of scope, duration and task — operation, which does fall in the president’s authorities,” he said.

In the Globe survey, Vice President Joseph R. Biden Jr., then a senator, argued that a president would have “no authority” under the Constitution to bomb Iranian nuclear sites without Congressional authorization because even limited strikes can unintentionally prompt all-out war.

The question of whether presidents may initiate war has been disputed since 1950, when President Harry S. Truman went to war in Korea without going to Congress. Truman said it was enough that the United Nations Security Council, new at the time, had granted permission. That claim was disputed, but it became a precedent. Subsequent presidents added more such precedents.

President Lyndon B. Johnson cited the Congressional Tonkin Gulf resolution, which expressed support for defending American interests in Southeast Asia, as authorizing the Vietnam War. Lawmakers later repealed it, but President Richard M. Nixon said he could keep the war going.

In 1973, lawmakers enacted the War Powers Resolution, which directed presidents to get Congressional authorization to send troops into hostilities except in an emergency; in that case troops must be withdrawn after 60 or 90 days unless Congress gave retroactive approval.

Still, presidents continued to send the military into action without prior Congressional approval — both with United Nations authorization, as when George Bush intervened in Somalia in 1992, and without it, as when Bill Clinton ordered the bombing in Kosovo in 1999.

Representative Dennis J. Kucinich, Democrat of Ohio, said Monday that even though previous presidents had sidestepped Congress, Mr. Obama’s decision was still a “serious” abuse.

“It needs to be pointed out that what he is doing is outside the Constitution,” Mr. Kucinich said. “If he is relying on precedent, then he ought to say so. But he’s got to square that with his own understanding of the Constitution prior to becoming president.”

ELIZABETH WARREN

In case you've been wondering who really runs this country and why your vote counts for as little as it does, columnist Joe Nocera's article on the new Consumer Financial Protection Bureau, created over GOP opposition by Congress under House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV). It still lacks a formally approved chair. The interim appointee is Elizabeth Warren, a Harvard Law professor who goes to bat for the consumer, over GOP objection, the GOP being the party favored, if not controlled by, the financial industry.

We bailed out the banks after the fall of Lehman Brothers in 2008, to the tune of close to a trillion dollars. In return we want accountability; we don't want a repeat of the huge lending bubble for derivatives and derivatives of derivatives. They were trading air for billion$ and are now having trouble foreclosing on peoples' homes, which seems poetic justice.

Pres. Obama knows he can't overcome GOP opposition to Warren's appointment, so he hasn't even submitted her name; instead he's appointed her on an interim basis. Whether she can get anything done, apart from serving as a lightning rod, or as Nocera terms her, a pinata with a tilde over the 'n,' her agency has yet to get off the rocks on which it was launched.

March 18, 2011

An Advocate Who Scares Republicans

By JOE NOCERA

The piñata sat alone at the witness table, facing the members of the House subcommittee on financial institutions and consumer credit.

The Wednesday morning hearing was titled “Oversight of the Consumer Financial Protection Bureau.” The only witness was the piñata, otherwise known as Elizabeth Warren, the Harvard law professor hired last year by President Obama to get the new bureau — the only new agency created by the Dodd-Frank financial reform law — up and running. She may or may not be nominated by the president to serve as its first director when it goes live in July, but in the here and now she’s clearly running the joint.

And thus the real purpose of the hearing: to allow the Republicans who now run the House to box Ms. Warren about the ears. The big banks loathe Ms. Warren, who has made a career out of pointing out all the ways they gouge financial consumers — and whose primary goal is to make such gouging more difficult. So, naturally, the Republicans loathe her too. That she might someday run this bureau terrifies the banks. So, naturally, it terrifies the Republicans.

The banks and their Congressional allies have another, more recent gripe. Rather than waiting until July to start helping financial consumers, Ms. Warren has been trying to help them now. Can you believe the nerve of that woman?

At the request of the states’ attorneys general, all 50 of whom have banded together to investigate the mortgage servicing industry in the wake of the foreclosure crisis, she has fed them ideas that have become part of a settlement proposal they are putting together. Recently, a 27-page outline of the settlement terms was given to banks — terms that included basic rules about how mortgage servicers must treat defaulting homeowners, as well as a requirement that banks look to modify mortgages before they begin foreclosure proceedings. The modifications would be paid for with $20 billion or so in penalties that would be levied on the big banks.

Naturally, the banks hate these ideas, too. So the Republican members of the subcommittee had another purpose as well: to use the hearing to serve as a rear-guard action against the proposed settlement.

“Under what statutory authority are you currently acting?” demanded Representative Patrick McHenry, a Republican from North Carolina, questioning the legitimacy of her role in setting up the consumer bureau. He also questioned whether the government had the right to impose a $20 billion penalty on the banks — and then use that money for (heaven forbid) mortgage modifications.

Spencer Bachus, Republican of Alabama, the new chairman of the Financial Services Committee, wanted to know how closely Ms. Warren had been consulting with the White House and Treasury Secretary Timothy Geithner about naming a director for the bureau — and whether she would accept a recess appointment “knowing the type of blowback from that.” (A recess appointment is a temporary appointment the president can make when the Senate is in recess, thus avoiding the need for Senate confirmation.)

Representative Steve Pearce, Republican of New Mexico, said that he fully expected the Consumer Financial Protection Bureau to be no better than “the S.E.C. and Mr. Madoff.” “Within two years,” he added, “your agency is going to be operating exactly the same, that it’s simply out there grinding wheels away.”

Representative Scott Garrett, Republican of New Jersey, zeroed in on the proposed settlement. Where in the statute did she have the authority to consort with the attorneys general? he demanded to know. “Are you making recommendations to government regulators about the dollar amount?” he badgered. “Is that part of your role, to make recommendations about dollar amounts?”

On and on it went, until the hearing sputtered to a close, two and a half hours after the browbeating had begun.

•

To listen to the House Republicans, you’d think the financial crisis of 2008 was like that infamous season of the long-running soap opera “Dallas,” the one that turned out to be a season-long dream. Subprime mortgages? Too-big-to-fail banks? Unregulated derivatives? No problem! With the exception of their bête noire, Fannie Mae and Freddie Mac, the Republicans act as if nothing needs to be done to prevent another crisis. Indeed, they act as if the crisis never happened.

The home page on the House Financial Services Committee’s Web site has been turned into a screed against Dodd-Frank. Clearly, the committee is going to spend this session trying to minimize the effect of the legislation, starving agencies of the funds needed to enact the regulations mandated by the new law, for instance. In fact, that effort has already begun.

It’s not just the House Republicans either. Already the Office of the Comptroller of the Currency has reverted to form, becoming once again a captive of the banks it is supposed to regulate. (It has strenuously opposed the efforts of the A.G.’s to penalize the banks and reform the mortgage modification process, for instance.) The banks themselves act as if they have a God-given right to the profit they made precrisis, and owe the country nothing for the trouble they’ve put us all through. The Justice Department has essentially given up trying to make anyone accountable for the crisis.

Thank goodness, then, for the attorneys general — and for Ms. Warren. On Main Street, where the attorneys general operate, it is pretty obvious that problems persist. During the subprime boom, many states tried to stop the worst lending abuses, only to be blocked by federal banking regulators. Now that the country is dealing with the aftermath of those abuses — the rising tide of defaults and foreclosures — it is the attorneys general who are, once again, put in the position of trying to stamp out abuses, this time of the foreclosure process itself.

Their leverage comes from the fact that the banks and their servicing divisions have, in the words of the University of Minnesota law professor Prentiss Cox, “routinely violated basic legal process” by, for instance, not transferring the note after the sale of a home. But in addition to assessing a financial penalty on the banks, the A.G.’s are trying to use the threat of litigation to force the banks to finally deal with defaulting homeowners more fairly and humanely. That is the essence of the settlement proposal that has been floating around. That — and a big push to finally come up with a modification plan that works.

When I spoke to Tom Miller, the Iowa attorney general — and the leader in this 50-state effort — he said that one reason he had asked Ms. Warren for advice was that she had already hired people with genuine expertise that he wanted to take advantage of. But that’s not the only reason. If the banks were to agree to settle the case on the A.G.’s terms, the Consumer Financial Protection Bureau would be the agency charged with enforcing the terms. So it makes sense to include its current leadership as they work through ideas for a settlement. Besides, the A.G.’s don’t really trust anybody else in the federal government to be on the side of financial consumers. Given their previous experience, why would they? Ms. Warren is the one person in Washington they feel is on the same side they’re on.

The notion that Ms. Warren lacks statutory authority to talk to the attorneys general is an objection so silly it is hard to take seriously. Consulting with the only government officials around who are actually trying to do something for financial consumers is precisely what she ought to be doing. Given that her agency could wind up enforcing the terms, it’s practically a necessity.

As for the idea the Republicans have been spreading talk that the attorneys general are overstepping their bounds by trying to force reform — and a big penalty — on the mortgage servicers, that’s pretty silly, too. As Adam Levitin, a Georgetown law professor, has pointed out on his blog recently, settlements are private agreements between two parties. The banks can accept what the A.G.’s are proposing. Or they negotiate different terms. Or they can reject them outright, and go to court to fight over the proper remedy. It’s really not any different from the multistate tobacco settlement of some years ago, which imposed some minor reforms on the tobacco industry along with a giant financial penalty. Congress had nothing to do with it.

I wish I could say with certainty that the ideas put forth by the attorneys general will finally help ease the foreclosure crisis. I hope they do. Mr. Levitin thought there was a decent likelihood of success; Mr. Cox, a former assistant attorney general himself, was also hopeful — though more skeptical. “So much of it rides on how well it is enforced,” he said.

Which is also why Ms. Warren is the most logical person to be the agency’s initial director: if the settlement does come to pass, no one will understand its terms better, or have a better feel for how to enforce them. Let’s face it: there isn’t anybody in Washington more fearless about standing up to the big banks. No wonder they don’t like her.

As I listened to her on Wednesday, I was struck anew at how clearly she articulates the need for the new bureau. “If there had been a cop on the beat to hold mortgage servicers accountable a half dozen years ago,” she said at one point, “the problems in mortgage servicing would have been found early and fixed while they were still small, long before they became a national scandal.”

Senate Republicans have vowed to block her appointment if President Obama nominates her. Yet even if her nomination goes down in flames, Senate confirmation hearings would be clarifying. Americans would get to hear Ms. Warren explain why the Consumer Financial Protection Bureau has the potential to help Americans. And they would get to hear Republicans explain why the status quo — including the everyday horror of the foreclosure mess — is just fine.

It has been much noted in recent months that President Obama seems unwilling to start a fight with Republicans. Maybe that’s why he has shied away from nominating Ms. Warren to a job for which she is so clearly suited. But if protecting financial consumers — and helping the millions of Americans struggling to hold onto their homes — isn’t worth fighting for, then what is?

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ROBERT H. JACKSON, ESQ., 27

John Q. Barrett of St. John's U. Law School has a special interest in Justice Jackson and thus sends around items from Jackson's life. In the example below, Jackson, as a young lawyer in upstate New York after the Great War (WWI) was assigned to censor a meeting of socialists with a view toward shutting down their most politically incorrect views, here, at the time. The exercise made him feel stupid and ashamed, it appears, and he wrote to his boss, the mayor, telling him so, declining future such assignments, and better than that, stating the reasons why.

Jackson went on to become the U.S. Attorney-General under Franklin Delano Roosevelt, then Solicitor-General, the attorney for the U.S. who appears before the Supreme Court to argue the government's position, and then to the Supreme Court. After WWII he was assigned to prosecute the allied war crimes trials in Nuremburg, for which he took a leave of absence from the Court and later returned.

Jackson was a great Supreme Court justice, dissenting in Korematsu, the Japanese Internment case that upheld the imprisonment of thousands of blameless people simply for being Japanese in America after Pearl Harbor; no trial, no hearing, no nothing except for fear and propaganda. What we couldn't take out on the Empire of Japan, we took out on them, until we could.

He also wrote the opinion in Barnette, holding that government could not force school children to salute the flag when their religion prohibited bowing down to graven images. Freedom of mind was not something that government could interfere with, he held, observing that in this country we have no prescribed orthodoxy in matters of religion, nationality, or belief.

In the Youngstown Steel case during the Korean War, he wrote in an opinion issued by the Court striking down Pres. Truman's seizure of the steel mills to keep production of munitions by thwarting a threatened work stoppage by union labor and resulting lockout by the management, that neither the Constitution nor Congress had given the president the power to rule by decree, especially in the field of labor management relations; in fact Congress had considered giving the president that power, but declined. His analysis of the power relations among the three branches of government is a classic. As I recall, I started this blog in part to explain cases like that to my class. Both Youngstown and Barnette are referred to on this blog, which is searchable using the Google search box in the left margin, above.

Barrett sent the following, today, 3/17/2011:

For the Jackson List:

On a Saturday evening in March 1919, attorney Robert H. Jackson, age 27, attended a lecture at Jamestown (New York) City Hall. The lecturer, a lawyer named Winter Russell, was a somewhat prominent American Socialist. The lecture occurred in a period of global turmoil, devastation caused by the just-concluded Great War and, in the United States, ideological clashes, violence, law enforcement excesses and widespread unease.

Jackson, who had just completed a short term as Jamestown’s corporation counsel and was building a private law practice, attended Russell’s lecture by assignment. Jamestown’s mayor had appointed Jackson and other lawyers to serve on a committee that evening to “censor” the lecture. It was anticipated, at least by the mayor and other Jamestown leaders, that Russell’s speech might cause disruption and need to be shut down.

Russell delivered a scathing speech. He attacked the U.S. government for its recent prosecutions of Socialist Party leaders Eugene V. Debs and Victor L. Berger for claimed crimes that really were, as Russell saw things, right principles and human ideals. Russell criticized the federal judges who had sentenced Debs and Berger to prison. But no censorship occurred—Jackson and his colleagues watched, listened and, at the end of the evening, returned to their homes.

Jackson stewed, then wrote. On Monday, he delivered this letter to the mayor, who was his mentor and friend, and to the Jamestown newspapers:

Dear mayor:

According to the duty which you thrust upon me, I attended the Socialist meeting last Saturday night addressed by Winter Russell, and desire to report to you that so far as I observed, there was no infraction of the letter or the spirit of our laws, and I desire to take this opportunity to decline any further service upon committees of this character and to respectfully suggest that they be discontinued.

The speech at this meeting consisted of a bitter attack upon the government for prosecuting, and upon the courts for convicting Eugene V. Debs for his attacks upon President Wilson and his policy. He [Mr. Russell] denounced it as an attack upon free speech and complained that Debs was serving a long term in jail, while Theodore Roosevelt had not been prosecuted tho he called the president’s policy “treasonable,” and other attacks by richer and more influential men had passed unnoticed. He [Russell] concluded with the usual dreamy nonsense about the time when four hours shall constitute a working day. He predicted that if the government continued its policy of imprisoning men like Debs and Berger, it would bring on a revolution.

I see nothing illegal in any of this. That we have a right to criticize a conviction was pretty thoroly established when the whole North arose in indignation at the conviction of John Brown, and when Abraham Lincoln made bitter attacks upon the Supreme Court of the United States because of the Dred Scott decision. I suppose there is nothing treasonable in dreaming about a four-hour day, that is merely moonshine.

I must admit that I never understood why men like Roosevelt and [Senator Henry Cabot] Lodge are immune from laws which condemned Debs and Berger. Not that I believe Roosevelt and Lodge should be prosecuted, but I believe that a Socialist has as good a right to criticize a Democratic president as a Republican has. In fact, Mr. Mayor, the whole speech was very moderate compared with those attacks upon the government which I have been reading at the hands of eminent senators and gentlemen.

It is useless for us to have a cold chill every time the Socialists have a meeting. We have embarked upon a policy as a government of imprisoning people who oppose the government. Many of our eminent and well meaning citizens are rubbing their hands and saying, “Now that we have Debs in jail and Berger convicted, Socialism will die out.” So said the Czar when he saw his political enemies exiled to Siberia; so said Louis the Fourteenth before the French Revolution; so said the Sanhedrin when they thought to kill out Christianity by crucifying Christ; so said the priesthood when they thought to kill out the Reformation by inquisitions.

Indignation meetings are the natural result of conviction of men like Debs and Berger, one several times a candidate for president of the United States who polled 897,000 votes in 1912, the last time he ran, and the other elected by the people of his district to represent them in Congress. I have read somewhat of history, and I just now fail to recall any government which has set about the suppression of unrest by putting popular citizens or class leaders in jail which has not stirred up a revolution, and I do not expect the United States to be any exception to a rule so universal. The prosecution of Debs and Berger is a tragic blunder. Sound law perhaps, but bad state policy, provoking class hatred and social unrest.

Mr. Mayor, I am opposed to Socialism and its insidious and vicious policy but I am equally opposed to those short-sighted people who expect to stamp it out by persecution. I am opposed to spying upon and persecuting and prosecuting and searching the Socialists, for they thrive on it. No doctrine of military necessity now requires suppressing opposition to the draft. All that is past. Appointing smelling committees to go to these meetings merely advertises the meeting. I think half the joy that the Socialists found in the Winter Russell meeting was in the knowledge that they were being watched, which proved to them that they had finally got under somebody’s sensitive skin and after I had heard the speech, I confess I felt a little ridiculous and I looked at the other members and they looked as ridiculous as I felt. Mr. Mayor, it is quite time that we quit letting these Socialists make fools of us.

Our forefathers were a canny crowd. They knew that free speech and a free press constitute the greatest safety valve that can be devised. They provided for it in this country, that is they thought they did, so that people who have grievances can meet and discuss them and solicit votes and carry on their opposition peaceably. The inevitable result of suppressing public gatherings and free speech is private gatherings and covert acts of violence and then the mob and then revolution. In every country which is now suffering from Bolshevism the government has for years tried stamping it out by suppressing free speech, exiling, and imprisoning labor leaders and radicals, preventing public gatherings, and in general adopting the very measures which seem to be getting some standing in respectable circles in the United States. We cannot adopt one half so drastic a measure against the Socialists as Russia did nor one half so effective, yet Russia failed, as we shall fail if we attempt similar methods. Bolshevism has gained the least ground in the countries allowing the greatest freedom of discussion and the most ground where most oppressed and penalized.

When Civilization is in convulsions, it seems to me not only petty but rather dangerous to be sitting on the safety valve. I think that our assumption of the right to censor what shall be said in these workingmen’s meetings is like our conviction of their leaders in that it seems to add to the hatred and bitterness already existing between capital and labor, and that if we desire these two great forces to co-operate we should cease to do these things which provoke antagonism and arouse slumbering hatred.

Very respectfully yours,

Robert Jackson

Jackson delivered this letter on Monday, March 17, 1919. I don’t know if he went on to celebrate that St. Patrick’s Day, but in a sense he already had.

Best wishes,

John

Professor John Q. Barrett St. John’s University School of Law Homepage

Elizabeth S. Lenna Fellow Robert H. Jackson Center, Inc., Jamestown, NY

Archive of selected Jackson List posts

Administrative details: I send Jackson List notes, which do not display recipient identities or email addresses, to readers who are interested in Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. To read archived copies of some past Jackson List posts, click here. If you received this note indirectly and wish to join the Jackson List, send a “subscribe” note to barrettj@stjohns.edu. If you wish to leave the Jackson List, just send an “unsubscribe” note.

INTERPRETING A COUNTRY

In 1872, the great American artist, Winslow Homer, painted "Snap the Whip," of a group of boys holding hands in a field outside of a one-room little red schoolhouse. It became the most popular picture in America, with reproductions of it hanging in homes across the country.

Why so popular?

The artist captured, or evoked, a feeling that cut across people all over the country, scholars advise; this feeling was to the effect that the nation had been through a terrible civil war, 600,000 killed, and this painting inspired the hope of a new morning, the rebirth of the country, so to speak. It had struck a chord.

While visiting the San Francisco Museum of Modern Art years ago, I noticed paintings of a rectangle of solid color painted on the plain white canvas background. How could an artist paint a picture of nothing, I wondered, and have it hang in a museum. Who is fooling whom?

Yet the art critics and historians explain that such paintings appeared after the terrible devastation of WWII. The artist was commenting on the loss of so many people, cities, and perhaps values, etc. These were paintings of despair, of the feeling of nothingness after a devastating war.

Today we are witnessing, via the available communications technology, the results of a devastating earthquake in the Pacific that produced a tsunami, Japanese for a special wave of energy that lifts the sea, causing a wave of water, that when it approaches a shallow shore, lifts the water in height and then drives the wave of water, now, onto the shore, destroying homes, people, farms, building, cars, trains, and anything in its path before it. Thousands of people are unaccounted for. Nuclear plants are coming undone, exploding, leaving their nuclear rods exposed to air, uncooled by water (the pumps and generators that drive them are under water and inoperable). Radioactive hydrogen is being released into the air. People are fleeing, ordered to evacuate. Half-a-million are said to be homeless and seeking shelter. There is a lack of food, power, transportation, communication and water. Panic has set in at the reactor plants as executives, engineers, technicians realize that all of their efforts to contain the leaks are failing, according to the lead article of NYT today.

I was struck by the following commentary of a scholar who points out that the Godzilla monster movies, made in Japan beginning 1954, were in fact a commentary on Japan's vulnerability to forces much larger than itself, such as America's nuclear power that ended the war with the A-bombing of Hiroshima and Nagasaki.

Friday's tsunami, March 11, 2011, is the worst disaster to hit Japan, since then, notwithstanding the Kobe earthquake a few years ago.

It takes a long and insightful view to make sense of artistic productions, a view not always apparent in the moment of production, except perhaps, to the artist, and perhaps not even to him. Ages later, it seems that we then can see that the war or calamity underlay and contributed to the particular effort and work.

Here's a copy of the article analyzing the significance of Godzilla, in light of Friday's tsunami and today's apparent partial, we pray, nuclear meltdown.

MARCH 14, 2011, 5:21 PM Japan’s Long Nuclear Disaster Film

By PETER WYNN KIRBY Crisis Points gathers personal accounts of moments of turmoil around the world.

Tags:

Disasters and Emergencies, Japan, Movies, nuclear power

OXFORD, England — Peering at the post-tsunami devastation in Japan on miniature YouTube windows or video-streaming displays from Japanese news outlets provokes not only great empathy and concern, but an unmistakable feeling of déjà vu. As a scholar focusing on the place of nuclear energy in Japanese culture, I’ve seen more than my share of nuclear-themed monster movies from the ’50s onward, and the scenes of burning refineries, flattened cities, mobilized rescue teams and fleeing civilians recall some surreal highlights of the Japanese disaster film genre.

This B-movie fare is widely mocked, often for good reason. But the early “Godzilla” films were earnest and hard-hitting. They were stridently anti-nuclear: the monster emerged after an atomic explosion. They were also anti-war in a country coming to grips with the consequences of World War II. As the great saurian beast emerges from Tokyo Bay to lay waste to the capital in 1954’s “Gojira” (“Godzilla”), the resulting explosions, dead bodies and flood of refugees evoked dire scenes from the final days of the war, images still seared in the memories of Japanese viewers. Far from the heavily edited and jingoistic, shoot’em-up, stomp’em-down flick that moviegoers saw in the United States, Japanese audiences reportedly watched “Gojira” in somber silence, broken by periodic weeping.

Associated Press/Toho Co. Ltd.A scene from the original “Godzilla”, a film inspired by the testing of an American hydrogen bomb at Bikini Atoll. Yet it is the film’s anti-nuclear message that seems most discordant in present-day Japan, where nearly a third of the nation’s electricity is generated by nuclear power. The film was inspired by events that were very real and very controversial. In March 1954, a massive thermonuclear weapon tested by the United States near Bikini Atoll in the Pacific, codenamed “Bravo,” detonated with about 2.5 times greater force than anticipated. The unexpectedly vast fallout from the bomb enveloped a distant Japanese tuna trawler named the Lucky Dragon No. 5 in a blizzard of radioactive ash. Crewmembers returned to their home port of Yaizu bearing blackened and blistered skin, acute radiation sickness and a cargo of irradiated tuna. Newspapers reported on the radioactive traces left by the men’s bodies as they wandered the city, as well as “atomic tuna” found in fish markets in Osaka and later at Japan’s famed Tsukiji Market in Tokyo. The exalted Emperor Hirohito himself was said to have eliminated seafood from his diet.

In a nation fixated on purity, the revulsion against this second nuclear contamination of the homeland was visceral. In late September 1954, the Lucky Dragon’s radio operator Aikichi Kuboyama died. “Gojira” appeared in cinemas the following month, breaking the record for opening-day receipts in Tokyo and becoming one of the top-grossing films of the year. During the same month, there was an upsurge in anti-nuclear petitions in response to Kuboyama’s death, and the peace movement went national.

Audiences who flocked to “Gojira” were clearly watching more than just a monster movie. The film’s opening scenes evoked the nuclear explosion in the Pacific and the damaged Japanese bodies so poignant to domestic viewers. Godzilla — relentless, vengeful, sinister — looms as an overt symbol of science run amok. The creature’s every footstep and tail-swipe lay bare the shaky foundations on which Japan’s postwar prosperity stood. The great reptilian menace onscreen — actually a man in a 200-pound lizard suit stomping through miniaturized versions of Tokyo neighborhoods — illustrated both Japan’s aversion to nuclear radiation and its frustrating impotence in a tense cold war climate.

The bizarre and suggestive menagerie of creatures that followed Godzilla onto the silver screen ranged from the intriguing to the ridiculous. Two pterodactyl-like monsters, both named Rodan, wreak havoc on Japan after being disturbed underground by Japanese mining operations. Mothra, the giant, pied moth-god of Infant Island — a fictional nuclear testing ground in the South Pacific — unleashes devastation on Japan in one film and actually gets the better of Godzilla in an epic smackdown in another. Other monsters include Gamera, a giant turtle, and the absurd Varan the Unbelievable, a large reptile resembling a flying squirrel. In all the films, Japanese populations alternately mobilize against and cower from the threats that wash up, or lumber onto, Japan’s shores.

Related in Crisis Points Echoes of 1923 An Unpredictable Test of Japan’s Resilience The Internet Kept Me Company Search for Solid Ground If there is any thread running through this sprawling bestiary of monster films, it is “the profound vulnerability of Japan,” as William Tsutsui writes in his acclaimed book “Godzilla on My Mind.” Japan, relatively powerless in the cold war arena in reality, is able in a fictional world to muster its heavily armed and impressively disciplined Self-Defense Forces to fight against, or occasionally delay or redirect, the colossal rampaging of outlandish threats.

But the films also clearly depict a human population that is, again and again, boxing above its weight class. Over time, Godzilla morphs into a defender of Japan, but dangers begin to materialize within the nation itself. For example, in addition to the lost moral compass of Japanese developers and other businessmen critiqued in several films, works like “Godzilla vs. the Smog Monster” (1971) gave voice to popular opposition against toxic pollution from Japanese industry and rapacious development that had notoriously poisoned Japanese bodies and defiled the nation’s once-famed “Green Archipelago” in a series of environmental debacles worthy of their own horror movie marathon.

If the monster-film genre is less ubiquitous than it once was, the themes it reflected are no less present today, particularly in the 24-hour blanket coverage of last week’s earthquakes and tsunami. It shows a Japan that remains visibly beset by large-scale threats that strike without warning. Japan’s emergency response teams rescue citizens stranded amid once-thriving cities I have visited in years past that are now little more than sludge and debris. Cars, trucks, trains and large ships lie swept into piles ashore or float in murky water like misshapen bath toys. Buildings implode and fires rage as if ignited by a burst of radioactive breath or a flick of a great creature’s tail.

But it also brings back into focus Japan’s awkward postwar nuclear predicament that was ambiguously illustrated by the Godzilla series. Japan now has 54 nuclear reactors, ranking third in terms of energy output behind the United States and France. Japan also has an unusually shoddy record for nuclear safety. The long string of occasionally fatal nuclear mismanagement lapses over the past few decades in a nation famed worldwide for manufacturing quality control and high-tech achievement is troubling and almost incomprehensible, to say the least. Part of this story is distinctly Japanese, as lack of transparency, insufficient inspection regimes and a sometimes paralyzing inability to make imperfect but practical decisions can leave an industry vulnerable to the sort of dangerous situations that confront the Fukushima reactors.

What is different this time, however, is that we don’t need a disaster film to bring out the nuclear contradictions of Japanese society. The tsunami was but one clear counterargument to the claim that nuclear power is a safe solution to climate change and dwindling oil supplies. As our thoughts remain focused on the plight of tens of thousands of people in harm’s way, Japan’s flawed nuclear record can help shed revealing light on nuclear power plans in other nations, including the United States, that have to succeed in the real world instead of in a far-fetched film plot.

Peter Wynn Kirby is a researcher with the Institute of Social and Cultural Anthropology at Oxford and a research fellow at the School for Advanced Social Studies in Paris. His latest book is “Troubled Natures: Waste, Environment, Japan.“

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MORAL IMPURITY

The following listserv exchange on the moral failings our exalted leadership:

On Mar 10, 2011, at 2:15 PM, David F. F. wrote:

Regarding Kennedy, Peggy Noonan said it best (paraphrasing from memory): "The Irish celebrated when finally an Irish Catholic was elected President. The only problem was that he was Protestant from Harvard."

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lol...

It isn't difficult for a columnist interested in being witty and ironic to take a jocular, tongue-in-cheek (I presume), shot like this one as to JFK, a bit of a rounder whom I admired, considering that we rarely get people in positions of high authority who are exact clones of us either as individuals or single-issue voting blocs.

Clinton has been called, ironically, the first 'black' president because of his friendliness and wide appeal to blacks.

Quite a bit has been said about the multi-ethnic background of the current president, much of it not tongue-in-cheek, alas.

The more the leader, or official, is pigeon-holed in one narrow, religious or ethnic compartment, the more difficult it is to become appointed or elected, unless the appointment is either long-overdue (female, Sandra Day O'Connor?), or to satisfy a constituency, such as the so-called balanced ticket of multi-ethnic New York City in the days of Mayor Wagner, and before and since: Irish, Italian, Jewish, three major voting blocs; others have been added since; e.g. Sotomayor, Puerto Rican.

LBJ was quite frank about the appointment of Thurgood Marshall to the Court, emphatically as a black and, inseparably, for his heroic leadership of the Civil Rights movement.

George H.W. Bush, by contrast, had his own less forthcoming reasons for appointing Clarence Thomas ("the best qualified candidate" etc.).

Today we're enduring a Congressional Subcommittee on Homeland Security hearing into Muslims as alleged potential security risks.

In 1942 they didn't even hold hearings before rounding up the Japanese on the West Coast. E.O. 9066, FDR.

Catholics and Jews are now sufficiently mainstream, one dares say, as to have escaped such procedures in this country, although the committee chair's former associations with the IRA, which practiced a certain amount of terrorism, aka freedom fighting, certainly do make for eyebrow raising reading.

Critics liken it to HUAC from the days of the McCarthy (it wasn't just him) Red-scare era.

I hadn't known that Hugo Black had an animus against Catholics; perhaps I was distracted by the history of his membership in the Klan, for goodness sake. By the time I'd heard of him, he was already a sitting justice, wrapped in whatever mantle they appear in when you're a young student and no mention is made of unfortunate prior associations, the ones that brung him to the dance in the first place.

rs

Since I know we're not going to get moral purity and have to take the wretched along with the alleged good, the question is how much moral impurity we're expected to swallow along with the Kool-Ade before we gag, or worse. I draw the line at Nazi sympathizers, myself.

Okay, so Washington owned slaves. And Jefferson. And Madison, the so-called father of the Constitution, or at least the Bill of Rights, or both.

What do we do with them?

Disown them?

Lincoln; morally pure? He would decline the cigar, I suspect.

We were fortunate to have them, as human as they were, despite our own Holocaust: slavery and Jim Crow, effects not all gone yet.

They built the boat.

Although it would be preferable, boatbuilders don't have to be morally pure; we'll patch the leaks as we storm along, assuming that we, the sailors, don't founder first. Sailors aren't famous for being very morally pure, either, are they?

Forecast: Continued turbulent weather. Next week, cloudy with periods of rain and patchy sun.

Bring rainwear and plenty of ...Oil.

Then we can all enjoy the Tea Party!