Sheridan: Con-Law

CONFLICTING NATIONAL NARRATIVES

We were talking yesterday about how it is that we seem never to learn from history.  Who's this "we," I wonder.  Some do, some don't.  Learn.  From experience.

Nicholas Kristof, NY Times columnist, offers a suggestion in his analysis of the U.S. and China which need to get along together but sometimes find it impossible, especially regarding Tibet.  The reason, Kristof explains is because we see China's behavior towards Tibet through the lens of our pro-human rights and anti-colonialism narrative while China sees foreign interference through its anti-national-humiliation-by-foreigners narrative stemming from when Western nations carved up China into separate spheres of influence.

When worlds collide, expect smoke and flame.

One writer has described these national narratives as "super-stories."  Israel enjoys support from American Jews but also American Christians on the political right.  Why?  There is an ancient belief in some Christian quarters that the coming of the Christian messiah depends upon the survival of the state of Israel to receive him.  Something about red calfs...

National narratives, lenses, super-stories, mind-sets, basic beliefs...we have ours and they have theirs.  It's not easy to come up with an overarching story that will satisfy both sides, other than, perhaps, "Since neither of us wishes to die, and we both want to see our children and grandchildren thrive, why don't we try to avoid killing each other?"  This doesn't always seem to work, does it, based on all of the dead bodies piled up over the last century alone, the bloodiest in history.  See WWI, WWII, Korea, Vietnam, Bosnia, PG1, Iraq, and Afghanistan, to mention the more prominent conflicts in which the U.S. has played a leading role.

The problem may not be that we are ignorant of, or intentionally disregard the lessons of history, but that we are forced to respond violently to the actual or threatened violence of other parties to the conflict.  Perhaps it is they who fail to heed the lessons of history.  Absent a mechanism for sorting out such conflicts in advance of the shooting, they persist.  The U.N. was supposed to provide such a forum and perhaps it does.  Sec'y of State Colin Powell went before the U.N. and told his lies, or believed falsehoods, a distinction without a practical difference for the rest of us.  Pres. Bush went before the U.N., too, before launching his attack on Saddam.  Unfortunately, we didn't need to ask anyone's permission to invade another country.  The objections of France and Germany were laughed off.  So here we are.  If we weren't fighting in Afghanistan (justified as the training ground of Al Qaeda) and Iraq (no WMD to date), I wonder whether we'd be fighting elsewhere.  It's hard to maintain such a huge military without exercising it from time to time, and not too hard to find a reason to do so.

My guess is that when it comes to actual conflict, we want our side to win and the other to lose.  Lessons of history count for little when engaged in an emotional conflict.  Warring couples continue to fight, the police continue to respond, the courts, prosecutors and probation officers continue to do their thing, psychologists and anger management classes continue to function, and what happens?  The couple continues to fight, unless separated by outside force, such as stay-away orders enforced by police. 

What's going on?

Just the usual, which is that we may like to think that our great tool of rational thinking controls outcomes, but the truth is that emotion runs the show.  I didn't invent this.  The statement that "emotion runs the show" is not new, but it does contain more truth than poetry.  For the reason that this is a pithy saying containing considerable truth, I'm reminded of the time when comedian Bob Hope allegedly hosted the president, vice-president, speaker of the House and secretary of state on his television show. 

"Hi, fellas," he remarked, "who's minding the store?" 

Ba-dum!

The Kristof article is below.

LEARNING FROM HISTORY

Walking through Books, Inc. on Chestnut in San Francisco with a book under my arm en route to another section to browse some more, one of the sales clerks, an older gentleman, asked what I was reading.  The book was one I'd seen favorably reviewed in the NY Times Book Review the day before and I was surprised to see it on the rack because there is often a delay between review and availability.

The book was Max Hastings's Retribution, (Knopf, N.Y., 2007) about the war in the Pacific mainly between the U.S. and Japan, with the China-Burma-India theater also of some significance in terms of British Empire, but not critical to the defeat of Japan.  Japan had invaded and captured Burma, the British colony that produced rubber (military tires), oil (military vehicles) and teak (naval vessel decks).  Britain wanted the colony back, even though the age of imperialism was dead.  The U.S. didn't want to lose American lives helping Britain recover its doomed colonies.  The Brits thought, however, in line with Kipling's "White Man's Burden," that raising the heathen to civilization and Christianity was God's mandate to the so-called White Race.

So I showed the clerk what I was reading next and remarked that I liked to read histories that show how we came to the present mess.  He replied that the one sure thing from reading history is that we never learn, do we.

That seemed a good observation which has set me to wondering.

Why, exactly, do we never learn from history?

Are we stupid?

Stupidity doesn't begin to explain it.  Churchill wasn't stupid, but he wanted his Empire back.  It was disintegrating under him, but, he famously observed, "I wasn't elected prime minister to preside over the dismantling of the British Empire."  Yet he did.  India, "the jewel in the crown," broke loose in 1947.

Americans aren't stupid, yet we get ourselves into the most god-awful messes.  We invaded Mexico and stole a lot of their land to make California, Arizona, New Mexico and did I say Texas?  And one other.  I'll think of it.  Maybe.

Why don't we learn?

Well, for one thing, we die and what we know dies with us, unless we write things down for the younger folk to read.  Will they read it?  Will they learn?  No one knows.

We have universities which teach history, culture, philosophy, technology, science, etc.  We seem to pass the science and technology parts along quite nicely.

We have the various religious institutions to pass down the generations a set of stories, characters, beliefs, and values that their adherents absorb and identify in a very strong way.

But history as an intellectual exercise doesn't make quite the same impact on our souls, does it?  Don't ask me what a soul is.  All I can tell you is that you won't find it shown in Gray's Anatomy.  It seems to mean the essence of something, or someone.  Said to to be able to survive the death or dismemberment of it occupant, or host.  I wouldn't know.

Hastings quotes U.S. General "Vinegar Joe" Stilwell:  "No matter how a war starts, it ends in mud.  It has to be slugged out -- there are no trick solutions or cheap shortcuts."

In his chapter on the British in Burma (today's Myanmar), Hastings writes, "As so often in wars, brave men were to do find and hard things in pursuit of a national illusion."

An illusion is something you believe in that isn't true.  There's a gap between the shining idea you have in your mind and reality.  If you think you can fly by flapping your arms, the leap off the barn roof will shatter that illusion.  Nature cannot be fooled, Richard Feynman said, but you can.  "The first principle," he wrote (in Cargo Cult Science, in "Surely You're Joking, Mr. Feynman") is that you must not fool yourself, but remember, you are the easiest person to fool."  Why?  Because at some level you want to believe that you can fly, and you will in fact fly, if only you believe strongly enough, like Peter Pan in J.M. Barrie's fictional work.  Tinker Bell and fairy dust do not make for the world's reality, but a children's fantasy world.  A fantasy world is a world of illusion. 

Are fantasy and illusion powerful forces in the real world?

They drive it.  They run the show.  They control countries.  They start wars.

Examples:

The U.S. holds the view that we're the best country going.  We're the tops.  We're terrific.  We're so good, being a democracy where the people choose their leaders and the laws that we live and die by.  We're so good that it is good for us to spread around this idea.  We're like Christians who believe that they have found the answer to life, the way to God, therefore everyone else should be like Christians.  So they send out missionaries to proselytize the heathen, the native, the benighted, the poor and down-trodden of the world, whether they like it or not.  Christian missionaries sent out by Spain to the New World came to save souls and get rich, not necessarily in that order.  They enslaved Native Americans, whom they called Indians, a slight error in nomenclature, along the way.

We invaded Iraq based on an illusion, the belief that he was hiding WMD.  Also he was a bad guy.  The world is full of bad guys, starting with Washington, D.C., but we don't go around invading the countries of all of the bad guys.  There's our bad guys and the other guy's bad guys.  We only want to invade their bad guys, not ours.

Hastings reports P. 73, that the British General Slim was called upon "to keep alive a dream of empire which thoughtful men knew to be doomed.  Churchill badly wanted to retrieve Burma and Malaya (today's Malaysia, rubber and tea).

"Societies run by civilians proved vastly better able to organise [sic; Hastings is British and they spell funny] themselves to fight the Second World War than those dominated by military men, of which Japan offered the most notable example."  P. 48.

"...Intelligence  was poor, because the Japanese mind-set mitigated against energetic inquiry, frank analysis and expression.

Our intelligence was never good, because few officers acknowledged its importance.  Commanders understood the need for battlefield information, but not for strategic intelligence about the big picture.

The Japanese army did not take intelligence seriously enough...we had no proper system, no analytical section, no resources...

We had no tradition of being interested in other societies and what they were doing.  It came as a shock to realize how powerful the Allies were becoming, and how much they knew about our actions and intentions.

Strategic decision-making was concentrated in the hands of perhaps twenty people, military and naval.  Even if our intelligence services had gained access to important information, it would have remained unexploited if it ran against the convictions of the decision-makers.  They would not have wanted to know.

...The greatest weakness of bushido (the Japanese code of military honor which disdained surrender but exalted death to avoid surrendering)...was that "no one was allowed to say what he really thought."  P. 49  [Japanese sources of quotations omitted].

The Western Allies (U.S. and Britain, Australia, New  Zealand, Canada) possessed advantages not only of better direction and resources, but also of language.  English, properly used, is a clear and powerful medium of expression.  Japanese, by contrast, is fraught with equivocation.  Tokyo's forces suffered chronic communications difficulties because signals were so vulnerable to misinterpretation.

There was no mistaking, however, Emperor Hirohito's broadcast circumlocution in which he told his people that the war has ended "not necessarily to Japan's advantage."

One of the reasons causing societies to go off on a self-destructive track is that when the people in control of a country have a mind-set that this is the way to go, all who differ are stifled by charges of unpatriotism, treason, and are marginalized as dissidents.  I don't know how to stop this, except to point out the advantages of free mind and expression guaranteed, to the extent we can guarantee anything, by our First Amendment.

So today, decades after the event, we have a historian and writer, Max Hastings, telling us what was wrong with Japan and Britain.  Would it have made a difference had Japan and Britain been told at the time they were going down their wrong paths that their paths were wrong?  Of course not.

If you tell President Bush, V.P. Cheney, Sec'y of State Condoleezza Rice, former Sec'y of Defense Donald Rumsfeld, and former Sec'y of State Colin Powell that invading Iraq was a wrong exercise for non-existent reasons, would they have believed you?  Of course not.  The possible exception is Colin Powell, but when the chips were down and he was given a look at the evidence supposedly justifying the invasion, he swallowed it hook, line and sinker, to his lasting discredit.  We trusted him but he wanted more to be on Bush's team than America's.  So he told the world, at the U.N. that the evidence was good and we had little choice but to accept, at least provisionally, what he claimed, which turned out to be wrong, as he has acknowledged, but Bush, et. al. have not.

This is how it goes.

Despite all the training, our minds are controlled, some at least, by cultural imperatives that require us to fall in line behind our political leaders in the name of national unity, patriotism, etc.  When these gods turn out to be false, we wonder how we got into this fix.  Dissenters at the time are ignored or put down.  Writers like Hastings have the benefit of 20:20 hindsight and we applaud their intelligent analysis, sung as a lament over the ashes of millions of war-dead, civilian and military, while we, the descendants of those who lived and died in the war are free to learn or ignore the lessons of that history.

The trick, it seems to me, is to learn the history and then become a leader.  This doesn't always happen.  Furthermore, each of us is free to draw his own lessons from what historical evidence and narrative exists.  We can't even agree on what our Constitution means, and what the Framers intended, much less the many other so-called lessons of history.

When making decisions about current predicaments, such as whether to invade another country such as Korea, Vietnam, Afghanistan, or Iraq, the nation, meaning its military and civilian political leaders, must assess the current circumstance through the lens of one's national history and experience, meaning how we understand the lessons of that past.  If burned sufficiently the last time, we may hesitate the next, but not always.

Germany was starved by naval blockade into submission and defeat in World War One.  The Kaiser, Wilhelm, abdicated and fled.  Germany was disarmed and the Rhineland demilitarized.  This was the territory between the river and France, to serve as a buffer protecting the French.  But the Germans felt betrayed at Versailles, where the treaty ending the war was forced down its throat.  Germany began secretly to re-arm.  Hitler rose to power by mobilizing the grievances triggered by the treaty.  And as soon as possible launched another war, World War Two.  The lesson Germany learned was that it did not wish to be a downtrodden former superpower when it could be a superpower by force of arms yet again.

Germany was devastated for a second time, its cities carpet bombed.  Japan was also firebombed and nuked flat.  Neither country has been a problem since then.  Before these terrible events they were terrible problems, enslaving and murdering millions of people.

If there's one thing we've learned it is that we must keep a sharp eye peeled on what the next country is doing.  We invaded Iraq on the chance that Saddam may have had WMD, and ours was a preemptive strike.

The strike succeeded in toppling Saddam.

The outcome of the effort to introduce democracy into a region dominated by a paternalistic Muslim culture for over a milenium remains to be seen.

Making the correct diagnosis as to what ails us is of critical importance for military and political leaders as well as physicians.  Jerome Groopman, M.D., about whom I've written earlier in the week (on 3-31-08) discusses why doctors fail to think straight, thus misdiagnosing, and missing, what is truly causing the malady they need to treat.  They keep making the same errors, over and over.  What kind of errors?  Thinking errors.  Doctors are made from smart, high-performing students who proceed from high school, where their intelligence is demonstrated, to the better colleges and universities, to medical school, internship, residency, fellowship, and finally private practice or other fields of practice such as academic, military, public health, etc.  So these are very smart and well-trained physicians.  We all rely on and respect them.  Yet they continue to err, as Groopman points out.  He tries to do something about it, by pointing out what kinds of errors his students, colleagues, and himself, continue to make.  Thought mistakes are usually made without a lot of attention to the thinking process itself. Much thought is given to the medical aspects of distinguishing one disease from a near-lookalike based on incomplete evidence in many cases.  But not a great deal of thought is given to the logic or completness, meaning incompletness, of one's thinking.  This is where the trouble arises.

What influences physicians most to correct their thinking? Groopman asks.  "The last bad experience," he answers.  The last bad experience is when a physician loses a patient he need not have lost given a better diagnosis, or is sued, an unpleasant enough experience.  This is what causes physicians to mind their thought processes more carefully, according to this report, to those who are thoughtful and sufficiently analytical of self and context, with or without the assistance of colleagues and other critics.

So you see that it is hard to cure people of being people, in the medical world, the political and military worlds, and in fact, just about any world.  I don't know of any group which has a monopoly on insight or intelligence, and that includes academics, philosophers, religious leaders, or whatever.  I cannot tell you on whom to rely for best analysis and answers.  It is up to you to decide who to follow, if you must follow someone, or elect someone, or to make up your own mind based on your own investigation of what seems right or wrong.

Good luck.

HISTORY, WE'RE SWIMMING IN IT

Japan has never really made amends for the atrocities it committed during World War II.

Turkey has never really made amends for the atrocities it committed during and after World War I.

Germany has recognized the genocide it committed under Hitler.

The United States confronted it's own crime against humanity, the enslavement of millions of mothers, fathers and children because of their race.  It also confronted its ethnic cleansing of thousands of men, women and children because of their Japanese ancestry on the West Coast following Pearl Harbor.

The way a nation, if it wishes to be great, makes amends for its past inhumane deeds is to acknowledge that it committed them, first.  What it does about this later is open for discussion.  Germany, in addition to paying money to survivors, has instituted classes and tours of the death camps for school-children, and it reminds them that it is not good to use certain word-forms such as calling people "dirty" because of their ethnicity.  It leads down a road to devaluing people as human beings when the need is to treat all humans as people worthy of complete respect and dignity.  Hitler did the opposite of that.  Modern Germany does not tolerate any more of this.

Japan has expressed a certain amount of official regret over its bad conduct, but never enough to cause anyone to believe that it sincerely acknowledges its war guilt.  We know this because it remains a hot topic in Japan.  When a mayor or a legislator have taken the nation to task over this, they have been assassinated.  Japanese schoolbooks ignore, gloss over, or whitewash the nations atrocities in China, the Philippines, and in the other nations of its "Co-prosperity Sphere," or empire leading up to the war.

Turkey's self image is such that it cannot admit that it wiped out a large number of Armenians for being Armenian.  It denies responsibility and quibbles over words.  The issue comes up repeatedly because the victims insist that their victimhood be recognized by the successor state to the Ottoman Empire charged with the actual murders by starvation, gun and sword.

American legislators with many Armenian-American voters in their district, such as parts of Los Angeles, have introduced legislation seeking to establish as this nation's official view that Turkey is guilty of genocide in 1918.

This is not helpful to our interests because Turkey has been a friend and ally for decades.  Turkey joined the U.S. in fighting the communist North Korean dictatorship when it invaded South Korea, not part of the Communist bloc and now a democratically administered independent nation, one of the few in Asia.

Turkey has allowed us the use of its bases to monitor and overfly the Soviet Union during the Cold War.  The famous U-2 flights over Russia were launched from Turkey.

We needed Turkey's cooperation during the Persian Gulf War and now during the war in Iraq.  There are a lot of Kurds in both Turkey and Iraq.  We walk a fine line in maintaining Turkey's cooperation while protecting it from Kurdish aspirations for a homeland for Kurds, much as the Palestinians want a homeland, and we did, too.

So it gets complicated.

It is a pity that nations are unable to recognize their own history, the story of their bad deeds as well as their good.  Whenever I condemn Nazi Germany, which was an automatic for me, having got my start during the war, now I think that I shouldn't be too smug for having been born on the right side, a matter of luck.  My attitudes might have been different had I been born elsewhere. 

The other day an album of photos turned up, of officers at one of the death camps having a fine old time during their off hours.  Hannah Arendt, in her book on the Eichmann trial, Nazi Germany, and war crimes referred to what she called "the banality of evil."  This refers to the idea that the monstrous genocide of six million Jews, Gypsies, sick people, and politically incorrect people didn't just happen all of a sudden, but was an industrial process in which a lot of people went to work every day and pushed paper in the direction of the death of all these people.  If you didn't push enough paper in that direction today, you still had tomorrow and meanwhile you collected your government or railroad or check from the corporation that made the ovens, the poison gas, and kept track of all of the paperwork, IBM, as I recall. How mundane is that?  How banal?

What this means is that it was not just Hitler, Goebbels, Speer, and Eichmann who are to blame, but all of Germany down to the engineer of the trains and the brakemen and the administrators and clerks in the offices all over Germany and the rest of Europe who turned over their Jews to the police who fell under the control of the Nazis.  Say you're a cop in Paris, used to directing traffic, and suddenly you're told to round up the neighbors who are Jewish.  They'll be put on a train, never to be seen again.  What do you do?  You're supporting a wife and two kids on a policeman's salary?  My guess is the same as what happened.  You round up Jews, unless you are an exceptional person who refuses to cooperate.  You'd be laughed at by your colleagues and friends before you, too, were fired and rounded up yourself, harming your little ones.  So you round up Jews.

This is how I think it works.

France has had difficulty coming to terms with its own anti-Semitism, beginning with the Dreyfuss Affair around 1895,, and it's rounding up of Jews all over France during the war.

I wish it were not so impossible for a nation to admit its wrongdoing, but it is, clearly, at least for some nations.  We don't like to admit our mistreatment of the Native Americans encountered by the white settlers.  But we certainly know that we did them wrong, even if we're not about to give back the land.  We put magic names on the process, such as "Manifest Destiny," which means that God has told us that it's okay to kill you and steal your land and not pay for it because he loves us because we're white and civilized and Christian and Western European extending from a civilization that we trace back to Rome and Greece and you don't because you are barbarian, savages, and live in tents and hunt animals.  So it's okay for us to treat you like dirt.

You can read about the Armenian genocide bill below in an article from the Washington Post.

ARTHUR M. SCHLESINGER, JR., HISTORIAN

“History is the best antidote to delusions of omnipotence and omniscience, ” he said, forcing us “to a recognition of the fact, so often and so sadly displayed, that the future outwits all our certitudes.”

"All this, though, was a mere prelude to Mr. Schlesinger’s own brief reflections, as he put it, on the “relevance of history. ” His first point was that historians themselves are prisoners of their own experience, committed “to a doomed enterprise — the quest for an unattainable objectivity.” It was a disarming way of acknowledging the critics who had suggested that he, at times, had shaped history to fit his own liberal agenda. It was also a summons to other historians to be willing to concede error and revisit the past.

" ROBERT B. SEMPLE JR.

-from the NYT editorial on the continuation below.

“Problems will always torment us,” he wrote, “because all important problems are insoluble: that is why they are important. The good comes from the continuing struggle to try and solve them, not from the vain hope of their solution.”

***

Mr. Schlesinger saw life as a walk through history. He wrote that he could not stroll down Fifth Avenue without wondering how the street and the people on it would have looked a hundred years ago.

“He is willing to argue that the search for an understanding of the past is not simply an aesthetic exercise but a path to the understanding of our own time,” Alan Brinkley, the historian, wrote.

***

REWRITING HISTORY, OUR DUTY

History is written by the winners.

Those who control the past control the present. Those who control the present control the future.

This means that you have to know what you want to rewrite to fit today's needs.  This requires study.

We do this.  Others do it too.  See Lawrence Wright's The Looming Tower, (Knopf, 2006), the story of Osama bin Laden, 9-11, and the Islamic fundamentalists who feel victimized by the West and wish to roll back all that is modern and western in order to return to the days of the Prophet Mohammed when Islam was pure, they believe.  Purity, of course, has never existed, and in order to achieve purity, which you never will, you must shed the blood of everyone who isn't you, for no two people will ever agree on everything.  Our problems with terrorists, today, are the result, in large part, not only on their displacement and shame, but on the reading they apply to history, their version of their story.

Our problem is not to make the same mistake by our own lights.  Reason is a tool, like a carpenter's tools, which in the right hands builds skyscrapers, cathedrals, and rockets to the stars, but in the wrong hands become burglar-tools.

Constitutional law is more than the study of law.  It is the study of history, and of human attitudes.

Law is a product of attitude resulting in action.  To consolidate the gains of action, which may be political, or military, we write law.  The winner does, that is.

Years ago, when I represented a man who said he was falsely accused of child sexual molestation, and there was no medical evidence to support the claim, despite the need for such to prove the specific claim made, it appeared that the prosecuting authorities were relying on false medical myths to support their claim.  "Always believe children who make such claims." Read the brochure from the child protective service.  "Children never lie about such things," it continued.  Is this true, I wondered?  What about Salem, where 19 innocent men and women were executed, despite due process, such as it was in 1692, and jury trials, on the testimony of children.  How is it that we're always supposed to believe that children can tell only the truth about this while, in contrast, we know that children lie all the time about other things to shift blame?  Do the cops, the probation officers, the social workers, and the judges in Juvenile Court automatically assume that children have a monopoly on telling the truth?  I didn't think so.

What I thought was that Salem taught us some lessons, if only we would learn.  One of them was that children can come up with some of the damnedest things, and that adults will believe them.  In fact, the adults taught the kids who are only feeding back what the adults taught and are prepared to believe.  In this way lies madness, of course, and Salem is the arch example of belief systems producing evil results, the judicial murder of innocents in what was supposed to be a rational process.  Craziness took over.

What are we supposed to do with that experience?

Learn from it.

Write about it.  Talk about it.  Teach it.  Don't let it happen again.

One of the odd things about Salem is that the tragedy was a product of failures not only of society in general, but of the two learned professions, law and medicine.  The parents who saw their children, girls between the ages of eight and seventeen fall into fits did what you would do.  The called the the village doctor, Griggs, who examined them.  "Bewitched," he said.  Why?  Because they looked like they'd been bewitched.  And what did that look like?  You don't know, do you?  Because nowadays we don't know how witches behave and what the after-effects of bewitchment look like.  But the Puritan descendants of Salem did, in 1692.  It was part of their everyday belief system, as surely as they knew that if the butter failed to churn or the cow died, the cause was that some evil spirit had been cast over them by a neighbor who was in league with the Devil himself.  If I asked you to act like a ghost, you might say "Whoo...I'm a ghost."  Why?  Because you've seen the fairy stories and cartoons having ghosts as characters.  Ghosts have been kept alive in the culture, particularly around Halloween, but not bewitching.

When Dr. Griggs pronounced the fallen girls of Salem "bewitched," he was saying, in our terms, that they were the victims of adult child molestation.  The only question now was to find out which adult was doing this.  The child, well aware of her parents enemies in the small town, said it was Neighbor So-and-so who had bewitched her.  The child could come out of the fit to make the accusation, which is odd, don't you think?  Later in court, the child would face the accuser and fall into another seeming fit.  The onlookers supporting the child would beg that the accused stop tormenting the child.  The innocent accused would say, "I'm not tormenting this child.  I scorn it."  The child's fit would increase in intensity.  Her supporters would increase their protestations, insisting that the bewitching be turned off.  If the accused agreed to stop bewitching the child, she would return to normal.  But the accused would have proved her guilt.

The accusing children would testify that they saw things that no one else could see, such as a yellow bird on the minister's shoulder at church.  This was call spectral evidence, and it was outlawed in New England following the bursting of the outbreak of accusations, of which at one point over 100 innocent women were being held in jail, apart from the 19 judicially executed by hanging, except in one case, Giles Corey, he was pressed to death with boulders in order to get him to plead guilty or not guilty.  He refused, in order to leave his estate to his family, under a procedural point which we've now corrected such that if you refuse to enter a plea in a criminal case we no long press you to death.  The court enters the plea of not guilty in the record for you and the clock now starts ticking on your speedy trial rights.  You don't forfeit your bank account, except to the extent you wish to establish your innocence through private counsel.

Our law has largely lost the lessons of Salem.  About the only thing to come down to us is the adage of Increase Mather, the father of Cotton Mather, arch prosecutor of "the witches," to the effect that "it were better that 100 accused witches go free than one innocent person condemned."

But the big lesson has been largely forgotten, that whole societies can get it wrong, that unquestioned beliefs, widely held, can be quite wrong and result in the condemnation of the innocent.  Nations can invade other countries based on false premises, widely believed.  If we want to believe something, no matter how foolish, we will.  And we will act on it, and cause a lot of damage.

During my representation of the man, in which the prosecution failed to convict and later dismissed all 61-felony counts (worth 8 years in state prison apiece; the man had turned down a plea to one count and straight probation, later a court-ordered psychiatrist who'd interviewed all of the dramatis personae reported to the court that the charge was factititious, meaning fictitious, made up, as the result of a process by the mother called parental alienation syndrome), I regretted that there was no case that I could cite the rule of which encapsulated the Salem experience, the way we lawyers do in other, more recent court matters that have reached the appellate courts.  There were no appellate courts in Salem.  The law which was later enacted, banning use of spectral evidence to convict in criminal cases, was not, so far as I know, incorporated into American law thereafter, perhaps because people stopped believing in witches and we do have rules requiring personal knowledge and that a foundation be shown of personal observation, which precludes claims based on supernatural belief, we hope.

In order to argue Salem, you have to be prepared to argue history, that is, your view of what the history was.  So you had to read the material concerning Salem, of which there's a good bit, including the preliminary hearing transcripts, set into print during the 1930s Depression by the Works Progress Administration.  If you want to read more about what I've written about Salem, go to the articles listed in the lower left column, or Google "salem" on this site.

The difficulty with arguing historical examples, like arguing constitutional cases, is that they are often complex and open to different interpretations.  If I tell you that Stalin and Hitler and Saddam were very bad men, you might agree, yet there are those who continue to revere all three.

The study of constitutional law is the study of constitutional history.  We left the mother country to start our own enterprise.  First the battle, then the law.  The law consolidated the fruits of battle.  The rest is history, or law, or both.  You need some understanding of both in order to understand either.

Arthur M. Schlesinger, Jr. is an American historian of long experience who has written an article, below, that appears in the New York Times today, New Year's Day, on the need to remember whence we came, in order to know where we're going.

HISTORY KILLS

As informed Americans, we view the massacres, genocides, suicide bombings and wonder why those people keep doing that.

Shi'a vs. Sunni in Iraq.

Protestant vs. Catholic in Belfast, Northern Ireland.

Christians vs. Jews in the Holocaust.

Hutu vs. Tutsi in Rwanda.

Orthodox vs. Roman in the former Yugoslavia.

Those people are captives of their history, we think.

They were born into a conflict of belief systems that is killing them.

Thank goodness that isn't happening here.

The reason it isn't happening here is because we have the power to transfer it abroad, and we do.

We are captives of our own history and it's just as religious, just as political, and just as philosophical, as any of the above.

You and I have beliefs.  Let's say you were born here and have absorbed a set of beliefs and ideas about what this country is and how it should behave at home and in the world.  Let's call you an American, native born and bred.

Today you probably believe that slavery was bad and thank goodness that's gone.

You probably also believe that Jim Crow, the formal, legalized, that is by law, separation of the major 'races,' white and black, is also gone, thank goodness, except for a few small pockets of residual prejudice.

You are a modern American, thank goodness.  You could do worse.  You could also do better.

Only a few years ago, had you been born earlier, there's a good chance you would have thought that whites were better than blacks, blacks were somehow inferior, and it was fine to keep the schools segregated.  Who are these agitators and rabble-rousers stirring up the races, anyway, Communists?  Pinkos?  Fellow-travelers?

Or you could go back a century plus to the days before the civil war when Abolitionists were hated by the North AND the South.  You wouldn't want to have been an Abolitionist.  If you are not politically very active today and don't take unpopular public stances now, what reason is there to think you would have been a hero of Abolition in 1835, say?

You might reason that since your preachers, legislators, newspapers, parents, and friends all tolerated slavery, you might as well, too.  The institution of slavery was much too big for you to worry about, and you were busy trying to feed your kids, so why worry about those black people down south?  You let it go.

But today you are fortunate to be on the side of the angels.  You are against slavery, Jim Crow, and the Holocaust, genocide and ethnic cleansing.

Good.  Now that we know you are against, what are you for?

As an American, you probably believe that all men are created equal, words of Thomas Jefferson.  Not that everyone is equal on the athletic field, but that when it comes to moral and legal rights, everyone is entitled to be treated with respect, just for being a human being like you.

Except blacks, gays and immigrants, of course. And women.  That's what a lot of people do.  They believe in equality except when it comes to people, usually groups of people, that they don't like, don't know very well except in stereotype, or fear.  It takes much struggle to win equal rights for people in these categories, when won at all, because of these mental reservations we hold.  Surely you don't mean we have to give equal rights to those others over there, do we? 

Yes, I'm afraid we do.  That's what Mr. Jefferson said, whether he meant all of it or not.  Equality was NOT built into the original Constitution, but was put there in 1868 after the Civil War and the lessons it, and Pres. Abraham Lincoln realized and taught us in his Gettysburg Address.  Government of the people, by the people, and for the people.

This belief is one that you hold, if you call yourself an American.

You may also believe that the rest of the world would be better off if it were like us.  We would like the world to be safe for democracy.  We fought a war on that idea, World War One, the Great War, 1914-1918.  We entered in 1917, under Pres. Woodrow Wilson.  He promised to make the world safe for democracy.  It was a war to allow the different ethnic groups of Europe and the Balkans determine their own future. That was the war to end all wars. But never mind about that.

We believed it then, and we believe it now.  Playing in the background is this idea that we know what's right not only for us, but for others.  We are missionaries for democracy, just as we had missionaries for Christianity, and still do. We subvert regimes we don't like.  It was revealed this past week that we were paying journalists to say bad things about Fidel Castro, one of our persistent bogeymen, of whom we have a ready supply.  Saddam Hussein was one whose statue we toppled in Baghdad.  Mission accomplished.  As in missionaries.

We invaded Iraq to eliminate a bad dictator and to raise up in its place a democratic regime that would reflect the will of its people and be friendly to the United States.  I just heard Vice President Dick Cheney on TV (Meet the Press) with Tim Russert say as much.  Let's hope that the people of Iraq are friendly disposed to us.  We could set up a new regime and the voters could decide they're sick of us.  Thanks for the hand, now go home.

Where do we get the idea that democracy and self-determination, the will of the people, the consent of the governed, are good for the rest of the world?  We believe these are good for us and fought a revolution to achieve it.  We were rewarded when the people of France rose up and overthrew their king in 1789, taking a cue from our revolution and chopping off Louis 16ths head just as Cromwell chopped off Charles I's head in 1649. 

Our revolutionaries were well aware of the Puritan rebellion in Britain, 1643-1649.  That was when our colonies were in progress.  That was why our colonies were in progress.  The Pilgrims and the Puritans (two different groups:  Plymouth under Capt. Miles Standish, and the Massachusetts Bay Colony, up the coast, under John Winthrop in 1620.  See Nathaniel Philbrick's "Mayflower." 

These were religious dissidents, non-conformists, thrown out, or driven out, of England because they were a pain in the ass.  The Puritans, and Pilgrims, wanted the Church of England to be more pure of Roman Catholic rite and trappings than even the Church of England, which feared and hated Catholics and the Pope in Rome was prepared to endure.

The Church of England was divided in two.  The "High Church" most closely resembled the Roman Catholic Church which Henry VIII had broken from over his failure to win a divorce from Ann Boleyn in order to have a son to continue his line on the thrown.  Dynastic reasons this is called.  You don't change a nation's religion without generating opposition from the people who didn't need a divorce and were happy remaining Roman Catholic.  So England underwent a slow, rolling, civil war of religion, with plot and counterplot to see who could place a monarch of their religion on the throne, Catholic or Anglican, another term for Church of England.  In Shakespeare's lifetime, much of it during the reign of Henry VIII's daughter, Elizabeth I, the state religion flip-flopped FIVE times between Catholic and Protestant, which is what the Church of England was.  The Protest in Protestant meant protesting against abuses and beliefs of the Roman Catholic church.

Protestants believed you could talk to god yourself.  Catholics preferred the leadership and guidance of priests and bishops.  Some Protestants hated bishops, such as Presbyterians and our Puritan/Pilgrim forbears.  To be a Protestant then meant that you hated Catholics, for they were associated in the mind of Protestants with Spain, France, Bavaria, and Rome, all evil, take your pick.

The English sea dogs, Raleigh and Drake, and their sailors, hated Spain and preyed on the Spanish gold-ships coming out of the Caribbean, laden with Pieces of Eight.  "Pirates of the Caribbean," starring Johnny Depp, is a reminder of the wars at sea between English privateers and the Spanish gold flotilla.

A privateer was a pirate with a license from the crown, called a letter of marque, authorizing the merchant adventurers to outfit a vessel to go raiding.  With the letter of marque, you shared the loot with the crown and were a hero when you came home with the goods.  Without the letter, you were hanged as a pirate.  Amazing what a piece of paper from the king could do.  Our constitution delegates to Congress, and by implication prohibits the states from issuing , letters of marque and reprisal (Article I, Secs. 8, Clause 10.  Section 10 expressly prohibits the states from doing the same.  The states have given up this aspect of sovereignty to the new federal central government called the U.S.A.

Because we are a nation that was founded by Christians, we have absorbed and carry over through today, many ideas that we trace back to our Puritan-Pilgrim forbears.  You may think that they are all gone, since we don't have churches called First Puritan Church, etc. but they haven't disappeared any more than you have.  They simply morphed into other denominations.  The names may have changed, but not the substance.  It's old wine in new bottles all the way down the line.  Our big universities, Harvard, Yale, and Princeton were Puritan ministry schools, set up by Puritans to train ministers.  The White Anglo-Saxon Protestant Ascendency in this country was a Puritan show from 1620 through I'd say World War Two, when the immigrant Irish, Italians, and Jews shook off the nativist prejudice and claimed their rightful place in the sun of American democracy at home.  The WASPs still don't like it.  They've been shoved aside by people like you and me. 

Throughout our history we maintain certain beliefs and ideas, passing them along in our foreign policy, that is, how we treat other nations, as nations and people, and how we treat our own people at home.

We stamped out the culture of the native American Indian, for example, all but.  If you regard a people as a savage race in need of saving by Christianity and white people, you have the makings of ethnic cleansing, genocide, etc.  In the name of obvious superiority, you clean them out and take their land.  Then you look south to Mexico.  And later when the Mexicans come here to work, you bar them.  Their land.  But, as S.I. Hayakawa said, "We stole it fair and square."  The linguist was president of San Francisco State following the student riots of 1968 who later became a U.S. senator from California.

If you would like to read about the history of our religious ideas that drive us to continue to make war around the world in an effort to spread our national beliefs to the poor benighted people of the world, may I suggest Warren Zimmerman's "The First Great Triumph," in which he profiles Theodore Roosevelt, Captain, later Admiral, Alfred Thayer Mahan, Sen. Henry Cabot Lodge, Sec'y of State Elihu Root, and I believe John Hay.  Also John B. Judis's "The Folly of Empire, What George W. Bush Could Learn from Theodore Roosevelt and Woodrow Wilson," profiling those presidents, Theodore Roosevelt and Woodrow Wilson. (Oxford U. Press, 2004).

We are a religious nation.  Not in the sense of Protestant, Catholic, or Jewish, but in the sense that all of the major religions have combined in a sense to produce a sense of mission by which the country feels justified in using force of our considerable arms to maintain a world order of our approval as a moral, read as more or less religious, duty.

You might be surprised to trace your most basic beliefs back to their sources, for it is unlikely indeed that you invented them.  More likely you absorbed them from parents, teachers, friends, movies, books, TV shows, etc. And where do you think they got their ideas.  And so forth all the way down.

Here's one expression of this idea by John Maynard Keynes, who was speaking of economic ideas, but the thought is just as good for anything else you believe unless you can prove you invented it yourself without being influenced by others:

Practical men, who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist.

Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back.

When Pres. Bush proclaims that we are making the world safe from Terrorists, he is sounding the same note as Pres. Woodrow Wilson, who took us to war in Europe, World War One, to make the world safe for democracy.  Wilson, the president of Princeton University, was the son of a Presbyterian minister.  He believed that we had a divinely inspired mission to bring the benefits of Christianity and Americanism, pretty much the same thing in his mind, to the rest of the world.

So did Teddy Roosevelt.  When I read that Pres. Bush was reading a popular new biography of TR, I went out and bought it myself, and read it, and have been continuing to read about what really drives us.

What really drives us to such great power and extending that power abroad are the religious and moral impulses that we derive from our Puritan forbears, those pains-in-the-ass who got thrown out of England for being, well, I just said it.

Listening to an interview on talk radio I heard a British woman remark that we, here, in the U.S. regard our Puritans as exalted figures, worthy of great respect.  But in England, she said, they are still loathed for trying to impose their beliefs on the most private aspects of living and worship.

Have the Puritans died out?

We've got a true-blooded Puritan living in the White House today.  Capt. Miles Standish lives. He was a brutal soldier responsible for the deaths of many non-Puritans.  Indians.  Iraqis.  What's the difference, right?

To return to our opening theme, your history, the one you are born into and inherit, or adopt, dictates whether you and your children will go to war.  You live or die, and so do your children, according to your history.  Thus I think it fair to say that your beliefs, which are the product of your history, determines whether you live or die.

History, therefor, kills.

This is why we like to read the story of what we believe, tracing the ideas, as traced by others, scholars, so we can evaluate better what our politicians proclaim for us.  They may or may not read the history themselves.  Many do.  Theodore Roosevelt read, was influenced by, and wrote histories.  Woodrow Wilson was an academic scholar who studied, taught, wrote, and made his name in history and political science before entering public life, going from university president to governor of New Jersey to President of the United States for two terms.

George Bush is a pretty savvy guy in his own peculiar way, listening to advisors who you can be sure have read their share of relevant history.

The thing about history is that the lessons to be learned are not carved in stone.  Each of us is entitled to draw his own lessons, some more real than others.

History is our big national Rohrschach inkblot test.  You see in it what you brought to it.

He who writes history controls minds in the future.

Who wrote the history that your mind carries around in it?

What have you read lately?

You are for democracy, meaning the right of people

YOUR HISTORY LIES, MINE TELLS THE TRUTH

In discussing Constitutional Law we constantly argue from the past, using history and cases. 

History is the story of what happened, told in a way from which we can draw lessons.  If you think Adolf Hitler and Josef Stalin were murderous tyrants, you tell their story so that the listener knows why you think so and why you think that they should think so too.

Naturally there are as many versions, and views, of history as there are those who tell the story and those who listen.  Each is free to tell, and hear, the story for himself, as no one has a monopoly on the past.

This is a subject that has received considerable attention, evidenced by the statement that he who controls the past controls the future.

If a nation such as Japan presents itself as benign and covers up, from its schoolchildren, the Japanese responsibility for causing, initiating World War II and the terrible atrocities it committed in China, Korea, the Philippines, Malaysia, and everywhere else that Japan occupied, those schoolchildren become citizens and voters who see Japan far differently from the way others, such as Americans who remember such things, do.  This accounts for the controversy over Prime Minister Koizumi's annual visits to the Yasukune memorial since the remains of convicted war criminals were placed there.  Japan and Korea are particularly aggrieved that Japan has not, in their view, fully acknowledged it's horrid past.  Japan leaves out, papers over, whitewashes, its history.

We don't much like to talk about our own slave and Jim Crow past either.  We do, however, continue to try to deal with their effects.  The history is available to study and comment upon.  We make some effort to learn from our own horrid past.  We continually rake over the coals.  Some of us.

Secretary of Defense Donald H. Rumsfeld, the leader of our war effort in Iraq, is an American archetype:  a former fighter pilot, former Secretary of Defense under Pres. Gerald "I pardoned Nixon after he made me his Vice President and resigned in disgrace" Ford, and exemplar of a militant mindset.

Of course he has been an active player during the Cold War when we saw the world in dualistic terms of the West against the godless Communists, us against them, a world of black-and-white.  Any gain for them was a loss for us.  Any loss for us was a gain for them.  But God was on our side, so we won.  God is always on our side, even when we hold slaves.

The war in Iraq is not going well.  Critics have laid out the evidence that Rumsfeld stifled plans for the postwar, called Phase IV.  Instead of stabilizing Iraq, we've allowed dissident groups to become active and commit suicide bombings of civilians and security forces alike.

Responding to the critics, the Administration maintains that we only see the bad news, not the good.  Most of Iraq has settled into peaceful existence, while only in Baghdad and Anwar Province to its west is there this ugly business.  Our problem is the press.  It only reports news, and peace isn't news.  The press reports on the daily civilian casualty toll.  And the five U.S. soldiers we lost yesterday.  And every day, give or take a few American soldiers.  We continue to bleed as Iraq continues to bleed.  No end in sight.

Rumsfeld says that pointing to such evidence is a way of criticizing the administration, his administration, unfairly.  His critics are appeasing the enemy.  His critics are unpatriotic.  His critics have not learned the lessons of history.

Others think that warning your country against going down the wrong road is ones highest patriotic duty.  And that warning your country against going further down the wrong road is even more patriotic.

Some think that one should draw lessons from what is happening on the ground in Iraq now, and from what is happening in Washington, where Bush, Cheney, Rumsfeld, and Rice preside over a war, or insurgency, that has us, and Iraq, bogged down.

Rumsfeld, however, emphasizes, in his public remarks, what happened in previous stages of conflict, such as the run-up to World War II, when British Prime Minister Neville Chamberlain flew to Munich to meet with Hitler and came back declaring as he got off the plane, "Peace in our time."  A few days later Hitler blitzkrieged Czechoslovakia, as in invaded, in a "lightning war," which is what a blitz-krieg translates to.

Chamberlain was immediately defeated by Winston Churchill who went on to lead Britain through the hard times of World War II.  Churchill was tough.  When Britain was all but defeated by Hitler's bombing and rocket-attacking of London, Coventry, and other places with bombers and V-1 and V-2 rockets, Churchill promised to continue to fight on the beaches, on the fields, until the last man was left standing, for this was our finest hour, he proclaimed.  Churchill was the picture for steadfast resolve in the face of calamity.

Churchill, and Theodore Roosevelt, the Rough-rider, are the models for Bush, Cheney and Rumsfeld.  Rice must be emulating Margaret Thacher, former British P.M.  She modeled herself after Boadicca, the warrior queen of the ancient Britons.

Acting tough, talking tough, standing tall, showing resolve and steadfastness, are the hallmarks of successful leaders throughout the ages.  But continuing onward stubbornly and refusing to see the facts in front of your face because they don't fit with you illusions is considered delusional.  Many a leader has led his country down the sewer because he couldn't imagine a world different than the one playing out in his head.

I hope that's not us.

But when Rumsfeld counters his critics by saying, "You haven't read your history," he reminds me of a former friend who I finally decided was insane.  His answer to most questions was that "You haven't read your history," or "You've mis-read your history."  This from a guy who never read a book and hadn't changed his views since he was in high school, from which he failed to graduate.  And he couldn't cite the history on which he relied.  There's lots of history.  A lot of what we call history consists of different versions from different points of view.  There is no official U.S. version of history.  Given our freedom of mind, to think and write what we think about different things, we have all sorts of different versions of history.

What Rumsfeld must mean is that his critics are operating off a different version of history and his is the true and correct version, all others being lies.

It's hard to argue with a man like that.  You talk past each other.  The only way to really deal with a guy like Rumsfeld is to make sure that the guy who appointed him to the position where he contributes to so much destruction doesn't get re-elected.  George W, however, is term limited out, see Amendment 22, presidential term limits, enacted to prevent another FDR who was in his fourth term when he died.  We've got two-and-a-half more years of the current administration.  We've lost 2,500 American service lives in Iraq since "Mission Accomplished."  No end in sight.

We have no time-table for leaving.  I don't want a date certain to leave.  We don't know on which date Iraq will be able to fend for itself.  We say we're going to stand down when Iraq stands up.  Iraq hasn't been able to get to its knees, much less to its feet.

We're in a mess.  I don't need to hear about Chamberlain in Munich and his appeasement of Hitler that failed.

I haven't heard anyone say that we should treat with terrorists the way Chamberlain treated with Hitler.  So I think it more than unfair for Rumsfeld to try to label his critics as unpatriotic appeasers.  How patriotic is it to continue to throw young, vibrant lives, after those we've already sacrificed?  The patriotic thing to do is either to press the administration to present a realistic event-table that will enable us to  replace American forces with Iraqi forces.  Then we've done the job we came to do anyway and all sides can welcome our departure, on the home front as well as in Iraq.

We don't seem to be doing a good job of bringing Iraq into position to govern effectively, to secure the peace, to administer the economy, to deal with its neighbors such as Iran.

We knew, or should have known, that this would be the problem as soon as our forces toppled Saddam, which was never in question.  The question was what would happen next.  Most of the criticism I've seen has been directed to our failure to properly address this question and it was most definitely considered. 

The problem was that our top general for the invasion, had his plate full planning to win the war he started by invading and no time for counting his winnings after he won.  We're making that up as we go along, and that is the problem. 

We go to war too quickly, without any idea what happens next.  We start back-fires and act surprised to discover that behind us the forest is on fire.  We didn't plan for that.

The world is too complicated a place for the U.S. to go around starting forest fires by accident.

Rumsfeld's comments are reported by the New York Times below: