Sheridan: Con-Law

TRACING IDEAS

Baruch Spinoza

I suppose you know that your ideas, the ones that run in background that you so take for granted you barely need to think of them, were all invented by someone and that you just act on them.

John Maynard Keynes, whose theories on the usefulness of deficit spending by government so influenced Pres. Franklin D. Roosevelt who used them during the Depression to fund projects such as the Works Progress Administration and Civilian Conservation Corps to put jobless men back to work to eliminate despair and restore hope by putting food on the family table, noted this phenomenon in the world of economics when he said what has been smoothed down to this:

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.

If you say you believe in America, or democracy, or God, you are saying that you put your faith in ideas invented by someone, some human being you may be aware of, forgot, or never knew.  When you say you believe in God, you are probably talking about the god invented in the Middle East some millenia ago, unless, if you descend from the Inca, you are talking about a different one invented in South America.  See A History of God, The 4,000 Year Quest of Judaism, Christianity and Islam, by Karen Armstrong (Random House, 1993).

American democracy is fairly traceable back to our Revolution of 1776 and the Constitutional Conventions that followed.  Our founding fathers, the framers of the Constitution, such as Madison and Jefferson, drew their ideas on religious toleration from John Locke.  Locke had taken refuge in in Holland because he got in trouble with the king over the long religious (Protestant v. Catholic) civil war that had been raging in England since Henry VIII broke with Rome, expropriated the monasteries, and established the Church of England, the Anglican or as it is known here Episcopalian Church.

Locke is believed to have become familiar with the ideas of his contemporary in the Netherlands, Baruch Spinoza, the former member of a congregation of Portuguese Jews forced
to flee Portugal even though some of them had been converted to Christianity several generations earlier in Spain.  The Spanish were not going to let the Jews off that easily, however, especially when the forced converts, called New Christians or swine ("Marranos") began out-competing Old Christians for jobs in government and the Catholic Church hierarchy, now that they had removed the taint of Judaism, supposedly. 

The Spanish Inquisition was established to ferret out secret Judaizers who kept the ancient rites beginning at sundown on the Friday evening Sabbath, such as by putting fresh linen on the table and refusing to work on the holy evening or on Saturday.  Cervantes has Sancho Panza describe himself as a 'cristiano viejo,' an Old Christian, thus a person beyond the taint of a doubt.

The Spanish came to believe in the notion of "Once a Jew, always a Jew," as though the blood itself were tainted thus, some argue, introducing the notion of tainted blood that Hitler used to eradicate millions of Jews.  Don't laugh, we practiced the same belief here in regard to belief with the so-called 'one-drop' rule of determining 'who's a black.'  If one of your ancestors was black, no matter how far back, if this fact were known, you were black.  Hitler drew the line on one Jewish grandparent, which was enough to get you fired from your government or university job.  "Jewish physics" is how Hitler & Co. regarded the works of Albert Einstein and other Jewish scientists. 

They say the Dark Ages was a long time ago.  Others say that no bad idea ever really goes away.

Spinoza got himself thrown out of his congregation for applying reason to religious beliefs, proving once again that reason and religion only go so far together, and not ever to questioning the roots of the latter. 

Of course we like to do that anyway, some of us, and so we will, trusting that the Lord who gave us brains will forgive us for trying to use them to show that there's a lot of make-believe in religion.  Any God worth his salt will allow this, of course, even if some of his followers will not, perhaps because they feel threatened with removal of power and influence if it turns out they're selling humbug, not that they would do that.

An Op-Ed in the New York Times today marks the 350th anniversary of the excommunication of Spinoza, teacher of Locke, Jefferson, and perhaps, you.

IDEAS

Ideas are what run Constitutional Law.

Although we put our ideas in writing, expressing them as neatly as we can to describe what is included within an idea, and what is excluded, the written expression is less important than the idea itself.

That's one reason why we can say that one should obey the spirit of the law and not just its text.

Where do ideas come from?

My best guess is that ideas are formed by what we call our mind, heart, and judgment as the result of some experience that challenges us to come up with something we call 'meaning.' 

We experience danger and flee or fight, then we talk about what we did.  That must have been an early example of idea formation, dating from the time when our brains had developed enough to put such thoughts into action and later, words.

What do we do with ideas that we think are important?

If it's a religious idea, we build a temple or a church, perhaps even the Cathedral of Chartres. 

If it's a governmental idea involving abstractions such as law or justice, we also build a temple.  See the Supreme Court building with its Greek columns and features.  What is it designed after?  Greek temples to gods.

Have you ever visited the site of the Oracle at Delphi, Greece? One of the first things you see upon approaching is a small building of marble that looks like a temple.  It is the Athenian Treasury building at Delphi.  Why a treasury building at a religious site?  Tourists need an American Express office.  That was the Greek Express going back 2500 years.

Why did Jesus throw the money lenders out of the Temple?  The Temple was where you did your business.  Between you and your brother in a neighboring city, you could settle a lot of credit accounts.  A good idea.  But, according to Jesus, render unto Caesar what is Caesar's, unto J.P. Morgan what is Morgan's, and what is the Lord's unto the Lord.  So he de-acquisitioned the bank from the Temple and we all lived happily ever after.

We're talking about ideas.

What do you do when you have an idea.

When I was a kid, I forgot about them.  I didn't know what to do with them.  I didn't know enough to write them down.  I was a kid.  Who would want to see the ideas of a kid.

It was a long time before I ever thought to write down some ideas of mine.  What prompted the effort was that I'd represented in some cases that challenged my mind a great deal and I found myself responding in many useful ways, from reading, to consulting with experts, and responding to challenges that seemed way beyond my capabilities.  Yet I had signed on to represent someone, to perform a rescue, if you will, referring to my old lifeguard days.  The rule was you keep trying no matter how hard it gets.

Slowly I found out that I was able to accomplish things I wouldn't have thought I was capable of.  Moreover, I didn't think that a lot of my fellow attorneys were likely to have been able to do better.  I learned more about me and about the world.  One of the things I learned was that if I read the things the experts relied upon to form their judgments, I could become conversant with issues that otherwise would have seemed foreign, such as psychological and psychiatric issues.  I found out where the medical library was at UCSF and began reading and buying books at the medical book store in connection with cases I was handling.  Then when a doctor came into court, he was on my turf.  He had to speak in English, which happens to be my mother-tongue, as Sen. Sam Ervin famously said during the Watergate hearings.  I can also read.  That meant I could ask a doctor questions that made a point.  You can do the same.  All you have to do is to have some command of the language.

Con-Law insists that you have sufficient command of the language to be able (a) to formulate a clear idea; and then, (b) put it into words so the reader knows that you are talking about one thing and not something else.

Some ideas gather strength because we institutionalize or otherwise reinforce them somehow, in different ways.

I've already mentioned that we build impressive buildings to reinforce some ideas, such as temples.  Columns always seem to stand for some idea.  Pyramids also stand for an idea, but I'm not exactly sure what idea it was.  Something to do with death, immortality, afterlife, and keeping the peasants down, no doubt.  You could probably spin the idea in several ways, depending on point of view.

Spinning an idea is the name of the game in Washington, D.C., I'm told.

Writing ideas into a constitution is an American idea.  We appear to be the first nation to do that.  Perhaps because we were the first self-created nation that we know about.  All the others seem, like Topsy, to have "just growed."  Their constitutions were ideas in their heads.

We wrote our ideas down, and we keep developing and tweaking them.

We also argue over which way to go.  This is called having a "constitutional question."

Law students often think Constitutional Law is the words on some page.

That's like looking at a sheet of ice covering a winter lake and calling what you skate on "the lake."

Our real constitution is the liquid body of ideas under the frozen sheet of ice which we call our document, the U.S. Constitution.  In order to understand Con-Law, you have to go diving beneath the crystallized surface of the words.  You have to go behind the words to find out what the real idea was, or is.

This takes a certain amount of cleverness on our part as students and lawyers.  I know what the words say, but is that what they really mean?  In this circumstance?  Really?  Isn't there room for an exception or an extension of the idea?  That's the business the Supreme Court is in, answering those questions.  But before they can answer, lawyers, writers, cartoonists, artists, politicians, letters to the editor, editorialists, columnists, politicians, and voters have to tell the justices that it's okay, first.  Otherwise they must balk at making exceptions or extensions of doctrine, on the theory it will not be accepted by the country, and what good is a court if no one respects it or will heed its commands.

Ideas gather strength when they have forces asserting them.

A dialect with an army is called a language.

A sect backed by government is called a religion.

The right to counsel backed by a nation of public defenders offices means something now.

If you have an idea you must write it down or lose it.

If you want to push it further, you need backing.  Take it to a backer.  Publish it.

Then you are doing something besides daydreaming.

Who knows, some good might even come of it.

The United States is the embodiment of all of the institutionalized ieas that it supports. 

This is why we don't like to see the U.S. embracing bad ideas like the torture of prisoners. 

It's not only bad for the prisoner, it's bad for the torturer. 

Very bad.