Geoff's Musings

Reading Dante

2007-07-06T02:13:00.000-07:00

I haven't abandoned the nominal project of this blog. But I've been sidetracked.

Lately, I've been reading Dante's Inferno. This isn't the first time for me. I tackled it once, back in High School. It was lost upon me. I tried again in college, taking an entire course devoted to this text. I gained a better appreciation for it's surface. How is Hell structured? What is the cosmology? The soteriology?

But, to be honest, meaning was lost upon me. The text was occasionally useful, but never meaningful.

A few weeks ago (Bloomsday to be precise) I was in New York, thinking of the Inferno. I was shocked by its opening line, as though I'd never read it before: "Nel mezzo del cammin di nostra vita..." As Mandelbaum puts it, "When I had journeyed half of our life's way."

And there, in the first Canto, plain as the day, was a description of the very agony I had undergone last September... the crucial moment of inner failure that drove me back into the arms of the Church.

Suddenly, this wasn't a dry discourse of medieval soteriology. It was a confession delivered from beyond a space in which I too had been trapped. Is it a roadmap?

I wondered: Is the infernal journey retraceable? Is this route available to me? Over the last two weeks, I've devoured the Inferno... by now I believe I've read each canto at least three times... poring over it. Though I've long been aware of the text, the experience has been one of disclosure - as though it had suddenly chosen to unveil itself before me. This wasn't the sadistic homiletic I'd taken it for. It was imbued with a pathos and humanism I'd never seen before... been too dense to appreciate.

Though it's mistake to describe the Inferno, and the punishments it so lavishly details, as a mere metaphor... it's also a mistake to displace their significance into a distant afterlife. The Dantean cosmology is very much a thing of this world. If the punishments it describes are brutal (and they are), they are no less real... true of us, existing in this world. As Virgil describes the damned, they are "the miserable people, those who have lost the good of the intellect." And who has not been trapped in the cramped confines of one's own weakness?

At first, I thought perhaps it was an invitation for exospection - a frank examination of the failures I've seen... acts of violence to which I've witnessed, acts of betrayal to which I've been subjected. The more I reflect upon it, however, the more I realize that it's a road-map for introspection... a frank analysis of my own failures. An invitation to recognize and abhor my own sins of incomprehension. The only route towards the Purgatorial mountain is inwards and downwards, through the Hell of one's own irredeemable mistakes.

I might not belabor this topic in this space... but I've nevertheless broken the structure of Hell into the following 34 questions:

The neutrals – When have I not taken a side that I surely should have taken? When have I sinned through non-commitment?
The ignorant – When have I been diminished by my failure to understand?
The lustful – When have I suffered from the pangs of lust?
The gluttonous – When have I suffered from appetite?
The avaricious – When have I suffered from the incontinent urge to hoard?
the prodigal – When have I suffered from the incontinent urge to waste?
The wrathful – When have I truly and spontaneously been angry?
the sullen – When have I truly and spontaneously been despondent?
Heretics – When have I believed against better judgment?
Tyrants – When have I abused my power in an effort to destroy another?
Murderers – When have I angrily sought to destroy another?
Suicides – When have I violently attempted to destroy myself?
Squanderers – When have I violently wasted that which was valuable?
Blasphemers – When have I cursed the world for my own fault?
Sodomites – When have I satiated a desire I knew to be disordered?
Usurers – When have I given out of a desire for gain?
Panders – When have I volunteered the charity of another for my own gain?
Seducers – When have I taken from another under false pretenses?
Flatterers – When have I stoked another’s ego to hide my own advantage?
Simonists – When have I abused my authority for my own gain?
Diviners, astrologers, magicians – When have I sought unearned and unwarranted knowledge without experience?
Barrators (graft) – When have I abused a position of trust for my own benefit?
Hypocrites – When have I presented myself as the opposite of what I am?
Thieves – When have I stolen from another what I knew to be his?
Fraudulent Counselors – When have I given bad advice for my own benefit?
Sowers of Scandal & Schism – When have I sought to make trouble between others for its own sake or for my own profit?
Falsifiers of metals (nature) – When have I obscured the truth of the world?
Falsifiers of Persons – When have I obscured the truth of my identity?
Falsifiers of Coins – When have I abused another's faith in an institution?
Falsifiers of Words – When have I abused another's faith in my self?
Traitors to Kin – When have I betrayed my family?
Traitors to Homeland or Party – When have I betrayed my nation?
Traitors to Guests – When have I betrayed one who trusted my hospitality?
Traitors to Benefactors – When have I betrayed one who was generous to me?

These are the questions... not who's damned and who isn't. The categories of damnation and purgation are redundant. They're circumstantial, not essential. Damnation is failure to proceed beyond and through the awareness and rejection of one's sinful nature. It's more than a metaphor, but it's far from a literalism.

Back on Bracton

2007-05-31T21:48:00.001-07:00

With that out of the way, let's finally turn to the chapter on Bracton.

The King Above and Below the Law

I found Bracton's thoughts on kingship to be really exciting. For a medieval jurist, his thoughts are disconcertingly evocative of a modern school of thought: legal positivism. Specifically, his distinction between gubernaculum (the King's unquestionable powers) and iurisdictio (the King's dubious righteousness) is an intellectual maneuver which, though firmly rooted in a natural law philosophy, suggests the same conclusion as a modern legal positivist... that law's subject is properly the domain of governmental powers rather than of independent abstract principles.

The question with which I'm principally occupied - that of sovereignty - is activated in contemporary legal debate by the problems of jurisdiction. When a court lacks jurisdiction, it has no power within a given case to say what is right. (iuris = "right"; dictio = "to say")

Bracton's curious formulation of a King "below and above the law" threads the needle of this eternally vexing problem. The Bractonian King is grouped with Frederick II's Iustitia influenced emperor - but he's a significantly English deviation from the imperial ideal. For, if Frederick II's law-centered King is an incarnation of justice, Bracton's law-centered King is a legal subject beyond the reach of temporal powers. The law applies to this King. As E.K. notes on p. 149, Bracton assumed that the law goverened the propriety of the king's relationship towards other equally indefeasible rights - those of clergy, magnates and even the people. The law is above the king, in that it applies with equal validity to himself as to anyone else. The kingship itself is a product of the law. However, the King transcends the law by virtue of extra-legal and legislative powers.

The great Bractonian modification - and in this we may recognize the strong influence of England's struggles between Norman kings and local nobility - is that the King's power is shared with another source... that of his Council. On p. 157, E.K. explains the rhetorical structure of Bracton's definitions:

Bracton's method is always the same: exaltation through limitation, the limitation itself following from the king's exaltation, from his vicariate of God, which the king would jeopardize were he not limited and bound by the Law.

This movement is captured in a terminological shift which E.K. identifies - Bracton's Kings are not Christ-like as examplars of Christ's reign (imago Christi) but are Christ-like as emissaries of a divine, Law-giving Father. (see p. 159 and 162)

It is through this new, curiously English, formulation of powers that the Praecipe Henrico Regi Angliae (which I've encountered other references too) becomes sensible - an order from the King to the King that he perform an action or submit to justice for failure to do so. The power of the King is a closed circuit, but it nevertheless flows through a logical sequence of steps which can carry the King through the entire chain of position above, below, and back above the force of human law.

Christ's Purse

It is in the doctrines of property, though, that the absurdity of the Praecipe Henrico is manifest yet treated with respect. The king possesses two estates - an inalienable empire bound to his person by the law, and a defeasible personal estate which was treated "against the king as against any private person" (p. 171). If the King were to divest himself of an inalienable possession, he must by his own power claim it back again. If he is to forfeit possession of his personal property, then even his own power is insufficient to justly reclaim it.

The collection of properties which are inalienable are part of the emerging doctrine of a fisc - the common property of the Empire. The collection of properties which may be transferred are feudal - the property of individuals bound in relationships. On p. 172 E.K. emphasis that this is not yet a notion of dual kings. But this dichotomy of property is laying the groundwork for the later "corporation sole" - in which the King is an executive officer of a corporation consisting only of himself and his lineal ancestors and successors.

Though the property of this royal fisc was at the King's disposal, as the corporation's "executive officer," it was also subject to baronial supervision:

While the English kings reigning in the thirteenth century tried to ignore even the existence of a cleavage between themselves and the things public, the various baronial opposition groups were ready to widen that split and to pit the res publicae against the rex regnans. It is significant that during the constitutional struggles of the thirteenth and fourteenth centuries, the baronial objections were always centered on the fiscal-domanial sphere, including the prerogative rights attached to it, whereas the strictly feudal sphere - including feudal aids and ohter rights exercised by the king as personal liege lord - remained, on the whole, unchallenged. Within the orbit of public affairs, however, and especially public finances, the barons could venture to control the king, to bind him to a council of their own choice, and thus to demonstrate that things of public concern no longer touched the king alone, but 'touched all,' the king as well as the whole community of the realm.

In Bracton kingship is a special state of affairs - a King is undoubtedly possessed of superior position and status. But, he righteousness of his extra-legal capacities is subject to a truly constitutional system - his powers are only valid within the sphere justly constituted by established laws. Further, his powers are sometimes complete, but other times pragmatically subject to those of his Council. There's a menacing overtone to Bracton's philosophy. In Frederick II's theory of Kingship, there is no answer to the royal question: "Who's going to make me?" A king reading Bracton would be struck that the question is more than empty rhetoric, and has a response he wouldn't like to hear...

Private foundations

2007-05-31T19:56:00.000-07:00

I'd like to open with some prefatory remarks, continuing our other discussion thread:

First: I have no formal education in Latin. Any knowledge I have of its vocabulary is derived primarily from heavy exposure as a student of history, a student of law, some incidental knowledge of Spanish, and a great deal of boyhood immersion in the traditions of Catholicism and western music which both deploy doses of instrumental Latin. I have studied ancient Greek, so I also have a decent understanding of certain rules the two languages share in common - primarily the importance of noun declensions. But I couldn't identify by sight a specific verb conjugation or case declension. It's enough to make some observations, and I don't want to disown all authority... but let it be clear that I'm not an educated source and any knowledge I might have is quite superficial.

Second: On the matter of liturgy, I've also picked up a lot of my knowledge by osmosis. I was raised by a lay expert on liturgy. Over the years, my father has often worked as a liturgical consultant for various Catholic parishes. Most of my life, I've found his passions to be corny and unreasonable, though I've admired his professional accomplishments - which were clearly infused by his liturgical expertise. It's simply a fact that my father consistently coordinates Masses which are transformative experiences in their own right, and at a level of quality that is hard to find in most parishes. He's very good at what he does. In a lifetime spent arguing with him about every topic under the sun, I've picked up a lot of second-hand information about liturgical theory and history.

In the Catholic tradition, there is an entire body of "Liturgical Law" - the law of ritual practices - which is intellectually distinct from "Canon Law" - the law of theological dogma. Lately, I've been going through a tentative reconciliation with the Catholic Church - I describe myself as a Catholic atheist. A great deal of that is motivated by a dawning realization that liturgy plays a central role in shaping human experience, and possibly by extension, human character. One could argue that my latest overtures to the Church are more like experimental drug use than any essential conversion - I've been experimenting with various practices and noting the physical and intellectual effects which such behaviors induce. For example, the sacrament of reconciliation (aka, "Confession") is a humiliating ritual in the most literal sense - it's a ritual expression of personal debasement. I was surprised to discover, however, that my personal act of confession (which included a frank admission to disbelief in the existence of God) was both intelligible within the Catholic framework and induced a physical experience of high intensity (when I was through, I literally wept and experienced joyful paroxysms). In a similar vein, I've been experimenting with the discipline of the Rosary - essentially a meditative practice that seems to be paying undeniable dividends for sharpening the clarity of my thought.

I'm not out to drop an uncomfortable of saga of personal religious development on you. But, given the centrality of the legal/liturgical distinctions in Kantorowicz, I think it's relevant to lay out the bases of my own authority on the topic - to both give you a sense of its bases and a metric by which to assess its likely biases. I've been engaging in a serious side-investigation into the norms and dictates of liturgical law, and I already have a deep but idiosyncratic acquaintance with it.

Another Reply to August.

2007-05-29T12:06:00.000-07:00

August and I had a good chunk of our chat wiped out of the Fray - which was a shame. I've had trouble getting back my rhythm ever since. His latest reply can be found on August Phillipic. Below is my response to that entry:

I'm going to structure this reply, by breaking my responses into the same subsections as you have used. I'll try and limit myself to issues you've raised, and save new discussion for my post on Bracton. I may include some errata, however.

Theology

I'm not sure what to make of your opening query. You ask a lot of questions, and yet my response seems to be "exactly." Kantorowicz is suggesting that the King'd Two Bodies is a problem, and as such he links it to the same problem which plagued the Church - how is the mind to conceive such ideas of doubled essences instantiated in a material singularity?

You ask whether the English Civil Wars were closely related to a questioning of this edifice - and again, the answer seems to be "exactly." If Calvin's Geneva was the "French Revolution" of the Reformation, then Tudor England seems to be its "American Revolution." Radicalism and conservatism walk together as fellow travellers, and the radicalism of the era is tempered by a fidelity to tradition. I may be mistaken, but I'm fairly sure the Anglican Church rejected the doctrine of eucharistic transubstantiation - that the physical body of Jesus Christ was mysteriously present in the eucharistic host. That's a huge source of the dispute between Protestants and Catholics and seems to exactly mirror the debate about the King's residence within the king. In Protestant theology, the mysterious infusion of mundane substance with a palpable metaphysical force is roundly rejected. It seems to me that the Cromwellian Parliament's declaration of Charles' treason against itself is likewise reluctant to acknowledge that physical substance is transformed by its association with a divine kingship.

With regards to your question about fiction, I think E.K. has a pretty good discussion of that point on page 306. To the jurist, a "fiction" isn't a bad thing and lacks the same pejorative connotations that it has in other fields of thought. The law is often quite frank about the practical use of "fictions" to explain juridical reasoning. Corporations are explicit fictions. The doctrine of Ex Parte Young is equally so. Private property is described as a "bundle of sticks" - a group of definable rights which are severable and transferrable. The quote from Baldus on pg. 306 gets to what I think he means:

"Fiction imitates nature. Therefore, fiction has a place only where truth can have a place.

Legal fictions are pragmatic tools for making sense of abstractions. Every analogy is, in some sense, a fiction (look at the word's etymology: "not logical" - the equivalence of manifestly unlike things can only be understood abstractly).

Anyhow, some thoughts. Worry that my tone is too dismissive or declarative. Good questions, all...

Ritual

I know it's jumping the gun quite a bit. However, I think his discussion of effigies and burial practices on pp. 419-436 will really interest you. If you haven't already goten there, take a look at the doubled tombs in Figures 28, 30, and 31 at the back of the book. Each features wo representations of the deceased - a body lying in state on the upper tier, while an image of the man's dead and decaying corpse in winding sheets is below. A doubled representation of a single man, sleeping in a bunk bed of eternity. Cool stuff.

I can take a stab at laying out the distinction between "liturgical" and "juridical." I think I understand it. I'd argue that liturgy is a praxis-based approach with strong subjective implications: doing transforms being. On the other hand, law is a theory-based approach with strong objective implications: individual circumstances are governed by metaphysical principles which apply across all variations. A liturgical sinner can be transformed through the doing of atonement. A juridical sinner will be judged on the Last Days - the only question is whether his conduct has merited a pr-defined punishment. A liturgical king is infused with, and transformed by, the Divinity of his office. A legal king is a product of happenstance whose power is amplified at the same time his humanity is debased. Is that a sensible distinction? If so, reasonably consistent with E.K.'s terminology?

Language

I hope I'm not being obvious when I say, gemina persona means "twin person." It's definitely a paradox, born of Christology. Compare to the Roman model of kingship - divine apotheosis. The mortal man literally transforms into Godhood and climbs to the heavens. The Christian king molders in the grave until his bodily resurrection on the last day - whilst his soul goes whither its bound.

I think the terminology debate about "demise" against "death" is an interesting one. Is that an example of 16th-century spin? Or is it just an aspect of the venerable tradition of legal hair-splitting? Are they the same thing?

I think E.K.'s description of the persona mixta is suggesting that the Christ-centered kingship is one of mixture - a person with two statuses, rather than two personalities. As I've understood, the central and subtle distinction between the Christ-Centered King and the Twinned King is precisely the interplay of essences. I need to review the passages a few more times, but I'd be interested to hear if you think that's a fair shot at it. Or have I lapsed into an overly reductionistic understanding of E.K.'s argument?

Art

I think your comment about the law's impossibilty is both profound and true. Since the Judaeo-Christian tradition is rooted in a conflation of God and Law, the inhumanity of Law's position above the human's subject strikes me as tightly interwoven with the most basic essential questions of the Western mind. Isn't the greatest problem of theodicy how can a merciful God have created a miserable world? Isn't that identical to the greatest problem of law? Why doesn't adherence to a just law lead to a just society? Both questions pose a temptation of rejectionism - if the world is not always good, then God is either non-existent or malicious. If society is not always just, then our laws must be either ineffective or monstrous. It seems to me that both rejectons are seductive, but leave us floating on the surface of our human existence.

Errata

E.K. has a fascinating discussion on the problem of Continuity. When we get to that, remind me to interject my recent forays into learning how to pray the Rosary. One of the prayers is of particular interest in that case - the "Glory to God" goes as follows:

Glory be to the Father, and to the Son, and to the Holy Spirit. As it was in the beginning, is now, and ever shall be. World without end. Amen.

That line strikes me as particularly interesting in light of E.K.'s discussion of the historical debates over Time's finitude and linearity.

Call and Response

2007-05-18T13:46:00.000-07:00

August:

(some responses)

Otto

We're not going to get anywhere with this. If you think the image was used as a teaching tool, fine. I think it's unlikely, just because of the rarity of books. Medievalists get away with this sort of thing because of the dearth of sources, but in other periods it is often possible to show how an image was used, how it circulated, who saw it when, etc. The work is no less stunning for the degree of commentary it did or did not require.

Legal History/History of Science

Another likely dead end. Lawyers tend to think legal historians are useless, and scientists tend to think historians of science are useless. Scientist talking about their own history tend to have a strong notion of progress (old mule Sal). Some are wish to maintain a stronger division between scientific facts and cultural constructs than most historians are willing to allow. I was thinking of a big controversy at the Institute where the scientists vetoed a historian of science from membership. But I don't disagree that lawyers have abused history terribly.

It was a throwaway line – sorry to lead off track

Your Question
I think you think you are communicating more than you are communicating. I agree with you, and then you disagree with me. It's like arguing with my wife (if I believed in smile emoticons I'd put one here) I'm going to overlook "The Renaissance leads to the Enlightenment."

Look, I think we have similar concerns about the Middle Ages – neither pretending that their ways of viewing the world were equivalent to ours, nor assuming that they were somehow trapped in an (inferior) intellectual straightjacket. If I misread your question, it's in part because "Greco-Roman rationality" seems to me as fully alive in 1200 as 1800.
As for novel vs. received knowledge – well, I'd expect you could find arguments for both at any given time (certainly King's Two Bodies has examples of both rhetorical strategies).

I haven't read either of the works you suggest. I'm going to try to make it to the library this afternoon (where the hell does my day go?). Hopefully I can at least skim a few things.

Means vs. ends. Let's return to this. I'm interested in what you have to say on the subject, but for now I think it's important to dig into Kantorowicz. I do think it's useful to have a pretty good idea of what each of us has invested in the book.

For my part, post-modernism hasn't caused me much angst. Maybe it's intellectual laziness, or maybe it's some weird quirk of my upbringing, but I like the idea that everything is rooted in language. I have a harder time dealing with certainty than doubt.
Hmm, that really does sound like intellectual laziness (I'll be quoting Andrew Sullivan if I'm not careful).

Hmm, let me turn to the text and see if I can't find something more interesting to say.

------------
Me:
I have an unfortunate habit of focusing in on small differences. I relish conversations such as this, despite the fact I often fear I'm listening past my interlocutor. Please do let me know when I'm being non-responsive or miss something.

The use of the image is unfortunately hard to gather from our vantage point - though as a Gospel, the book likely had liturgical significance. At the very least, I'd hope we could agree that manuscript illustrations likely had a didactic purpose among the literate.

On legal history, I meant to agree that E.K. isn't providing much context for why England diverges. But I think lawyers find legal history more useful than scientists do - which is precisely why they (we) debase it so badly. My prof has a nice term for it - "law firm history." Judicial opinions often involve intense scholastic debates about fine points of history, in which sources are deployed with scant regard for historical context to buttress contemporary arguments.

On post-modernity, I think more than I can say, so I'm not surprised if I'm communicating less than I should. If you take post-modernism seriously, it poses a serious challenge to modern academia. Here at law school, there's a small department dedicated to "Critical Legal Studies." The reaction to this field is best summarized by a book on legal philosophy I once read (I've seriously condensed a 4 page range here):

Before moving to a discussion of moral theory and its relation to legal theory, we shall pause briefly in order to consider a radical challenge that has recently been preseneted to the legitimacy of the traditional understandings of both of these enterprises. This is the challenge presented by Critical Legal Studies (CLS), including its feminist wing. [...] The basic ideas of CLS are best seen, at least initially, as an attack on the idea of neutral principles in law and morality. [...] If we took literally the radical value relativism and skepticism taught by some advocates of CLS and feminist jurisprudence, we would seemingly be deprived of any language through which those persons could attempt to persuade others to care about the issues they raise.

Not all advocates of CLS and feminist jurisprudence offer so facile a ralativism, and thus not all are so easily rebuked. There is more to be studied in these movements, and it should be studied in the writings of those sympathetic to them."

In my own education, I was constantly steering between ardent post-modernists and professors who argued that it lacked a methodology or purpose at all, and was hence a priori invalid. Its proponents struck me as flummoxed; its detractors struck me as anti-intellectual.

I've certainly fetishized language myself. But I think those of us raised in an intellectual climate tinged with post-modernism have a potential to build something very useful with our understanding, that is nevertheless very different from post-modernism itself.

Response to August

2007-05-18T02:33:00.001-07:00

I haven't read Maitland. I haven't even begun to find him. I've found authors in the law library who seem to echo the points for which E.K. cites Maitland, but tracking down that author will come later for me.

With regards to your discussion with "Anonymous" - I doubt you were speaking to TQM. Two bases for the assumption. (1) Too much identification with abstractionism; (2) stylistic or linguistic discrepancy... doesn't "sound like him." I could be mistaken, but I suspect that's someone else.

The Aachen frontispiece... I suspect you're wrong. While it's true that such a book would only be available to those with an "expertise" in writing, I suspect that in that age (much as our own) such experts had a "duty" to translate their understandings to the laity. We don't have an empirical hook on which to hang such suspicions. But my comparison to a contemporary power point show wasn't accidental. I believe such images were meant as explanatory tools - not only to help the literate student, but to give him a capacity to evangelize an untutored audience. A parallel that leaps to minds is the architecture of a Gothic cathedral, in which many details of the era's cosmology were inscribed upon the very walls. The specialized understanding of the literate cleric charged its recipient with a public duty to explain the concepts to which he'd been made privy.

Alas, I don't have the tools to adequately argue the point. But I strongly suspsect that the emphasis on illustration in medieval manuscripts serves as much to bridge the gap between the illiterate and the literate... much as a contemporary children's book uses big pictures to impress the meaning of the words upon the child, while the letters of the text are only accessible to the adult.

All that said, I think your shift towards the implicit communication of imagery is well-grounded. I'm going to bracket that invitation, not because it's uninteresting (quite the contrary), but because it's too big for me at present.

I dimly recall the book by Aries... I actually took a course on the development of childhood in American culture, and it was a seminal work.

When you get to my question, you make a conflation I tried hard to avoid - the Renaissance and the Enlightenment. The Renaissance may be the Middle Ages... but it certainly leads to the Enlightenment, which is not. Two book recommendations that come to mind are Evil in Modern Thought by Susan Neimann, which I read just last year and New Worlds, Ancient Texts (which I read almost a decade ago). At this point, I wouldn't be surprised if you're already intimately acquainted with one or both. But, just in case...

Nevertheless, your response relies upon the continuity of tradition (certainly a Renaissance value)... yet, the Enlightenment seems to have sparked an emphasis on originality of thought. One of Grafton's points ("New Worlds, Ancient Texts") is that we've come so far in our prioritization of the novel, that we've lost sight of how medieval people saw themselves situated within time. Why did Christopher Columbus have a copy of The Travels of Mandeville with him as he sought his route to China? Because he was retracing a historical voyage, not blazing a new trail towards a new world. In today's world, we find Mandeville a fabulist and Columbus a pioneer. But in 1492, Mandeville was a travelogue and Columbus was nearly an historian.

When I suggest we might need to "go medieval" on our own asses (or rather, our intellects), I mean to suggest that the post-Enlightenment development of the Western mind may have elevated what were once believed the means towards understanding into the ends of understanding. This blends into an epistemological and metaphysical critique of my own existence, that I alas cannot yet comprehensibly defend. I've met a surprising number of people my age, who seem to be haunted by an ineluctable "something" - a philosophical belief they can't yet think into expression. We seem able to agree that they're possibly the "birthing pangs" of a post post-modern mind - the possibility of building anwe, through the tools of deconstruction. I submit that this description is either a product of some species of derangement or it is the pre-verbal germ of a developing idea. I'm eager to be drawn out if such a line of discussion interests you. If it seems deranged, it'd be kind of you to say so.

Your General Points.

Rulership.

I think he has provided us a view of the ranges... however, on a higher level of generality than you're looking for, and across a broader swathe of text. The juristic King, the ecclesiastical King, the natural King, the accidental King, the messianic King... it's all there.

But - the Anglo-Saxon deficiency does seem writ large across the text. I took a wonderful course under Philippe Buc at Stanford (how I first encountered Kantorowicz, incidentally) about the spread of Christianity through Pagan Europe. The course split its analysis between two major periods of conversion - the Roman Empire to Christianity in, I believe, the 4th century A.D., and the conversion of Scandinavian culture in the 9th and 10th centuries A.D. If you want a fascinating insight into the legal structure of the Scandinavian world, I highly recommend Njal's Saga - a fascinating tale of Icelandic political history. I can't seem to find it on my shelf... though I'm fairly sure it's the one I mean.

It seems clear that E.K is neglecting the indigenous side of this discourse. He's laying a tremendous foundation for the canonical and ecclesiastical doctrines which will infuse the doubled British King. But it seems like the atheological side of British Culture... the Magna Carta hasn't been mentioned, and according to the index will only be discussed once upon page 407. He makes it clear that the British Divine King is less than his Continental Divine Counterpart but seems to attribute it to an accidental British essentialism:

"England in the thirteenth century was less messianically minded than Italy and the rest of the Contient, and the doctrine of the ruler as a lex animata descending at the command of God from high heaven down to men seems to have fallen on particularly barren ground in England before the age of Queen Elizabeth."

This may not be due so much to some quotidian nature of the British soul, but might have far more to do with the precarious negotiations of an alien sovereign over a deeply seated indigenous tradition.

Context
Bracton's writing for lawyers. Before Blackstone, he was the definitive work on English law. He wrote "The Laws and Customs of England" (or as E.K. assumes you can translate, De legibus et consuetudinibus Angliae p. 145). And lawyers in that time are walking a fine line between a tenacious English common law and an evangelical civil law. At least, according to Blackstone:

NOR was it long before the prevailing mode of the times reached England. For Theobald, a Norman abbot, being elected to the fee of Canterburya, and extremely addicted to this new ftudy, brought over with him in his retinue many learned proficients therein; and among the reft Roger firnamed Vacarius, whom he placed in the univerfity of Oxfordb, to teach it to the people of this country. But it did not meet with the fame eafy reception in England, where a mild and rational fyftem of laws had been long eftablifhed, as it did upon the continent; and, though the monkifh clergy ( devoted to the will of a foreign primate) received it with eagernefs and zeal, yet the laity who were more interefted to preferve the old conftitution, and had already feverely felt the effect of many Norman innovations, continued wedded to the ufe of the common law. King Stephen immediately publifhed a proclamation c, forbidding the ftudy of the laws, then newly imported from Italy; which was treated by the monks d as a piece of impiety, and, though it might prevent the introduction of the civil law procefs into our courts of juftice, yet did not hinder the clergy from reading and teaching it in their own fchools and monafteries.

FROM this time the nation feems to have been divided into two parties; the bifhops and clergy, many of them foreigners, who applied themfelves wholly to the ftudy of the civil and canon laws, which now came to be infeparably interwoven with each other; and the nobility and laity, who adhered with equal pertinacity to the old common law; both of them reciprocally jealous of what they were unacquainted with, and neither of them perhaps allowing the oppofite fyftem that real merit which is abundantly to be found in each.

Is that a good quote, or what? Blackstone fucking rocks.

Legal History
I think you're wrong. For starters, scientists aren't compelled to abuse their own history. Lawyers are horrible with it. To a lawyer, history is a thing to be shaped for a present purpose. Judicial reasoning is a travesty of intellectual integrity, but a necessity of political life. Treating it seriously will drive you crazy. Not treating it seriously will leave you impotent before the Law. I'll admit, E.K. isn't discussing the difference between Norman Sicily and Norman England. And, that's probably a good thing. I'm armed to explaine something about Norman England. I have barely a clue about Norman Sicily. (And Norman Byzantium? I can only admit I know it was so.)

What's different? That requires a lot of explanation. What are Normans? How did they manage that? Why did they do it? It's too much for E.K.'s purpose... he's assuming you know the basics, and it's probably an over-generous assumption (even for me).

Presentism
I won't go into the name-dropping either (except to say that I've neither read Habermas nor do I "know what to say" about him (a prof friend of mine frequently says "haven't read him, but I know what I should say..."))

But I say "good catch" on E.K.'s conflation of "public sphere" with res publica - I missed that and must think upon it. "Secular" is also tricky in this context, because of E.K.'s undelineated context of binding pre-Christian authority. To Blackstone, the British Druids have an undeniable place in English legal history...

August Thoughts

2007-05-18T01:10:00.001-07:00

To quote:

[(?)we]'ve got a lot on the table here. I'll try to keep in more or less coherent chunks

Have you read Maitland yet? If not, let me know when you get to him, and I'll try to track him down as well. I saw your references to Blackstone on your blog. I may take a peak if I have time (can you tell I'm procrastinating?)

Digression on Images

I've read Understanding Comics. I feel like I wrote about it not so long ago – I think in a dispute with Quiet Man over on WikiFray. Yeah, it's in the comments, here. You are right that he is arch in his readings of our visual cues.

I think the readers of the Aachen Gospels would have understood the image. That's a very small audience. And the point is, that they might have understood it so completely that they thought it commonplace. Or, no, not commonplace, because books weren't commonplace, but they might have thought it an image that required no particular elaboration. They may or may not have seen it as summing up their political culture. Kantorowicz is very much interested in the image because of its relationship to later images.

That being said, I agree it's a stunning work. It's economy in depicting a kingship, a cosmos, an eschaton – it made me want to go to the Met. Maybe I'll do that tomorrow.

I was trying to come up with something equally complex – you may be right that our visual culture is far more one-to-one than medieval iconography. But our metaphors of power remain rich. In my now-lost post, I talked a little about the recurring theme of many movies – that the protagonists would be okay if only they could escape the strictures of deadening convention. Think "Footloose," "Titanic," or virtually any costume drama. Or it may be that future generations look back at our architecture – the pre-fab house, the Seattle Space Needle, Epcot Center. Or think of the various Fray post invoking various obligations of motherhood. I don't mean to sound mystical -- I know my argument would be better if I took the time to trace some of the political valiances. All I'm saying is… it''s pretty complex, and the apparent simplicity of our logos and charts shouldn't mask the tricky work of naturalizing hierarchies that's happening all over the place.

Medieval imagistic thought and speech – I'm sure you're right. Medievalists in general have the reputation for paying closer attention to such things than modern historians. I saw a great talk by Carolyn Walker Bynum about blood, which I sadly can't remember very well, but she paid close attention to depictions of blood, and of what blood meant for religiousity, piety, kingship, and gender. We're getting into the period when people start flagellating themselves and the like. It definitely opened my eyes to the fruitfulness of that kind of history. Also a famous book on the history of childhood by (I think) Aries.

So while I agree that the Middle Ages get a bad rap, I think medievalists do very well for themselves.

I'm going to skip the Chinese stuff for now – too much to explain. I'll come back to it.

You asked a question that intrigued me:

If medieval thought represented a thoroughly different trajectory from Greco-Roman rationalism (and I suspect it did), might we better be able to comprehend our post-modern world with a self-conscious medievalism?

Well, clearly the answer is yes. In college I read a great essay by LeGoff – "Toward an Extended Middle Ages." Think of our great fears: the plague and the infidel. Think of the vast encroachments on public interest by private (yet corportate) entities (wondering how Haliburton relates to the fief. And let's face it, the Renaissance is the Middle Ages. There's really no difference – the revival of antique precedents was a near-constant activity from Otto to Napoleon. Can fundamentalism be understood outside the Reformation, and what is the Reformation but a peculiar form of the waves of piety that overtook people throughout the medieval period. I think we learn a great deal about ourselves from the Middle Ages.

And also from our medievalisms – that is to say, our ways of understanding the period. I'm going to move to some general criticisms/questions about Kantorowicz, and then go to some particular textual matters.

Some General Thoughts

I've read to page 192, and a couple of things have struck me.

Rulerships
I've been wondering a great deal about the Anglo Saxons, and more generally about images of kingship and rulership. What of the tribal chiefton, the military hero, the iconography that would have been summed up with a Black Bear rather than a Roman Lion? Kantorowicz is self-conscious in his selectiveness, but I wish an introductory chapter had given me a better sense of the possible range of images out of which we were finding our two bodies.

Context
He does, to be fair, mention the Investiture's Controversy. But beyond that, there's very little said about the developments that might have influenced, for example, the shift from Christ-centered to Law/God-the-father-centered kingship. I have to confess I get rather lost at times. Who is Braxton writing for? Is his audience the sorts of folks who forced John to sign the Magna Carta, or was he writing for a special class of jurists?

Legal History
I think legal history is to law as history of science is to science. Each seems designed to confound lawyers and scientists. A classic move in legal history is to show that similar laws lead to different outcomes, thus flummoxing the claim of (a few?, some?, fewer and fewer?) lawyers that law determines outcomes. The closest E.K. has come to this move is in the chapters contrasting Frederick II and Bracton. I see the divergences, but again the why of the divergences remains a question for me.

Presentism?
Every once in a while, Kantorowicz seems downright prophetic. His analysis of a "public sphere" seems to anticipate Habermas. His interest in time seems to share a great deal with the German historian Reinhart Koselleck.

O screw it, no point in name dropping. What I'm dancing around is that there are passages when Kantorowicz seems to me a little too rooted in the twentieth century. There's a difference between res publica and a public sphere (p. 191 "the king as supra-individual administrator of a public sphere"). And even more so – the notion that he is recording a secularizing tendency. "Secular" is the wrong word here.

Okay, well, I've marked some passages for closer examination, and I'm sure you have a few as well. I'll examine and post.

(I should point out here that I can't read Latin. If you can, any insights would be welcome).

I've found your comments very, very thought-provoking. I haven't responded to all of them because there's so much to say, and I'm really only just sinking into the heart of the work. I'll try to keep actively posting through the weekend. After Tuesday next week, I start teaching again and my pace will slow, but I'll certainly be around.

New entry on Kantorowicz

2007-05-18T01:01:00.001-07:00

First, let's talk about the structural organization of this work. We began with Plowden's Reports - in short, a case summary explaining the problem of the King's doubled body. On the one hand, we have a doctrine which helps to settle thorny dilemmas of power. Can one King retract another's contract? The answer is "no," but the imperative of law is to provide a plausible "why." And hence, we find that a King can't be a minor because the mystical body of King-ship is the party to a contract.

In the opening question, we face a cross-roads. Our paradox is already clear... it's a simple variant of the puzzler "can God create a stone so heavy he can't lift it?" If we choose an answer, God can't help but be diminished. The unfortunate position of law is that it must answer paradox, and the 14th century's resolution errs on the side of finality. If the King's will shall be mercurial, then it's authority shall be arbitrary. Though it's not easy to dispossess the King, it's far harder to undermine the basis of his authority by admitting to his inconstancy.

In E.K's analysis of Richard II we see the stakes of this problem humanized - the fickleness of the man-king has been tamed by subjecting the man who is king to the fickleness of the divine King. Richard II derives great elevation from his proximity to the Godhood of sovereignty. But the office owes the man no duty - it may lift itself from his person and alight upon the body of Bolingbroke. And in this we face the dilemma of Icarus at the height of political power - he who dares to epitomize the sun, nevertheless flies upon waxen wings, and is sure to fall at the hands of the very power towards which he has exalted himself.

After laying out the terms of the ultimate issue, E.K. takes us back to the beginning - when things were different. He begins his discussion in England, shortly after Hastings, with the work of the Anonymous Norman. The man is out-of-step with his time and with his place. For, as a Norman, he embodies a contemporary European notion of law and kingship... the King as the Christomimesis - the image of Christ. E.K. doesn't do such a great job of drawing out the historical counter-pressure (which Blackstone does discuss in depth) of an indigenous nobility that refuses to accept the wholesale imposition of Norman legal frameworks. But, he does point out the idiosyncracy of his leading author.

From there, we move to the larger milieu - Otto II, the 10th Century Emperor of "Holy Rome." Otto II is a King who drinks from the Godhead of Christ. It's a messianic metaphor of Kingship, and as such embodies a sequence of paradoxes which imperfectly translate into the English experience. A King enjoys office by grace, which is to say by election - by the mysterious workings of divine care for this earth.

In Chapter IV, we experience a shift in ideals of Kingship, towards a legalistic framework. Frederick II, of Sicily enjoys his authority from the font of Reason and Justice. It's within this framework that E.K. situates Bracton - the King as an exalted receptacle of divine virtues, rather than a mere exemplar of Christ. If Otto II ruled because God cared for man, then Frederick II rules because man must care for God. Otto II epitomizes a divine compassion for the sorry state of man. Frederick II rules because man may only enjoy the divine through the intervention of intermediaries. In this type of a King, we find Bracton's ideal... a man who must mediate between the exalted ideals of mankind and the debased facts of man's experience.

If the Christocentric King of the 11th century is bound to this world by mortality, the legal King of the 12th century is bound to this world by a celestial arrangement of law. For this model, the words of Justinian's Code - "greater than the imperium is the submission of the principate to the laws" (p. 104) - epitomizes rulership. The King is bound to the laws, not by divine or secular force, but by identity with Justice.

It is this new identity between power and justice which legitimizes the non-ecclesiastical state. I found the metaphor from Accursius to be especially powerful - "just as the priest, when imposing pentience, renders to each one what is right, so do we when we judge." (p. 121) The Christocentric King of the earlier era was a divine act of Mercy. By the time of Frederick II, Mercy was the provenance of Christ's shepherds in the clergy, but Justice was to be dispensed by the Father's appointed - the forces of the State. As the clergy could be trusted to channel Divine Mercy, the judiciary could be trusted to channel Divine Justice - "Melius est bonus rex quam bona lex"... "it is better to be ruled by a king than by the Law." (p. 135) (Nevermind that this flies in the face of the apparent point laid out in the scriptural Book of Kings.)

This allows the distinction between the King's power and his inspiration to gain conceptual clarity. Aquinus differentiates between his vis coactiva - his coercive power - and the Law of Nature's vis directiva (directive power) to which he too was subject. (p. 136) On the one hand, this new conception of Kinghood confers dreadful power to the King. If he traverses the laws of natural Justice, his power shall remain unchecked - it flows from the structure of the world rather than the compassion of God. On the other hand, it undermines the King's temporal authority to the extent that his very Kingship is dependent upon his conformity with the divine Justice that raises him up. "In the Law-cenetered era... the Prince no longer was 'god by grace'" (p. 141) - on the one hand, his power was an arbitrary fact, but his authority has become dependent upon the judgment of men rather than the will of God.

And that's where E.K. delivers us unto the hands of Bracton - a truly challenging philosopher of Kingship. Because it's late, I'll save my discussion of Bracton for later. Though I'll share a passage emailed to me by my professor at the start of this entire enquiry:

Bracton, the early English treatise writer wrote a famous, particularly fraught passage in De Legibus et Consuetudinibus Angliae in the 13th century.

"The king has no equal within his realm, nor a fortiori a superior, because he would then be subject to those subjected to him. The king must not be under man but under God and under the law, because law makes the king, for there is no rex where will rules rather than lex. Since he is the vicar of God, there ought to be no one in his kingdom who surpasses him in the doing of justice, but he ought to be the last, or almost so, to receive it, when he is plaintiff. If it is asked of him, since no writ runs against him there will [only] be opportunity for a petition, that he correct and amend his act; if he does not, it is punishment enough for him that he await God's vengeance. No one may presume to question his acts, much less contravene them."

E.K has walked us to Bracton's doorstep of analysis. Our King is not a ruler by the proactive Grace of God, but rather by the necessity of society. We may pray that he subjects himself to the rule of Justice, but one can't rely upon God to hold the King to account within the boundaries of this world, and one cannot resist the King's temporal power within this world's confines.

Reading Notes: Blackstone, Ch. 3

2007-05-17T15:50:00.000-07:00

"Our laws, said Lord Bacon, are mixed as our language: and as our language is so much the richer, the laws are the more complete." (p. 48)

"The only method of proving that this or that maxim is a rule of the common law, is by showing that it has been always the custom to observe it." (p. 51)

"Three points to consider in the construction of all remedial statutes; the old law; the mischeif; and the remedy" (p. 64)

"There are also courts of equity established for the benefit of the subject, to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law." (p. 67)

Reading Notes and Excerpts from Blackstone - Ch. 2

2007-05-17T14:24:00.000-07:00

Ch. II: "A being independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependence consists." (p. 29)

"[The Creator] has graciously reduced the role of obedience to this one paternal precept, 'that man should pursue his own true and substantial happiness.' This is the foundation of what we call ethics, or natural law. For the several articles into which it is branched in our systems, amount to no more than demonstrating that this or that action tneds to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it." (p. 31)

"Undoubtedly the revealed law is of infinitely more authenticity than that moral system, which is framed by ethical writers, and denominated the natural law." (p. 31)

"Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these." (p. 32)

"If man were to live in a state of nature, unconnected with other individuals, there wouldbe no occasion for any other laws, than the law of nature, and the law of God. Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and in a state of nature we are all equal" (p. 32)

"A third kind of law [arises] to regulate this mutual intercourse called 'the law of nations': which, as none of these states will acknowledge a superiority in the other, cannot be dicated by either; but depends entirely upon the rules of natural law, or upon mutual copacts, treaties, leagues, and agreements between thseseveral communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which both communities are equally subject." (p. 32)

"Municipal law...is probably defined to be 'a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.'" (p. 33)

Elements of a rule (p. 33): "permanency, uniformity, and universality."

Municipal law: Civil not moral (pp. 33-34). Must be prescribed - i.e. notice provided. Basic critique of ex post facto legislation.

"Municipal law is 'a rule of civil conduct prescribed by the supreme power in a state'. [...] Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other." (p. 35)

Sorry, Locke: "This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted." (p. 35)

"the original contract of society [...] the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community" (p. 35)

"As all the members which compose this society were naturally equal, in whose hands are the reins of government to be entrusted? ... in such persons, in whom those qualities are most likely to be found ... the three grand requisites, I mean, of wisdom, of goodness, and of power: wisdom to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty." (p. 36)

"In all [forms of government there must be] a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii or the rights of sovereignty, reside." (p. 36)

Cute: "Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit." (p. 37)

"With us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy: and as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy." (pp. 37-8)

"Here then is lodged the sovereignty of the British constitution; [...] FIf the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristorcracy or democracy; and so want two of the three principal ingredients of good polity." (p. 38)

"Inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is entrusted: and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law." (p. 39)

Four elements of a law: declaratory (establish rights and wrongs), directory (instruct conformity), remedial (recovery of rights or restitution of wrongs), and sanction (penalties incurred by public wrongs or failure of duty). (p. 40)

"The remedial part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded." (p. 41)

"The alternative is offered to every man; 'either abstain from this, or submit to such a penalty': and his conscience will be clear, whichever side of the alternative he things proper to embrace." (p. 42)

Discursus on rules of construction:

Words understood in most usual and known sense... i.e., general and popular use. Ergo, law prohibiting "lay hands" on priest includes use of weapon.
If still unclear, resort to context. Thus, preamble as aid of construction. Cross-statue comparisos.
Always interpret words as relating to the subject matter at hand. Thus, prohibition against priests purchasing "provisions" from Pope surely shan't signify sustenance instead of see's beneficences.
If words seem absurd if literally understood, we must bend their meaning in accord with reason. Thus: "whoever drew blood in the streets should be punished with the utmost severity,' was held after a long debate not to extend to the surgeon who opened the vein of a person that fell down in the street with a fit."
Lastly, consider the reason and spirit of the law... the cause which moved the legislator to enact it. "For when the reason ceases, the law ought likewise to cease with it." (wow!) "There was a law, that those in a storm forsook the ship, should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the shiop, except only one sick passenger, who by reason of his deasease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was to give encouragement to such as should venture their lives to save the vessel: but this is a merit wheich he could never pretned to, who neither staid in the ship upon that account, nor contributed any thing to its possession." [Geoff: Though, I must say, by the rule of natural justice, I'd think the guy deserves the ship. He was left to die by his companions, and for bearing such an enormous risk of death, it seems not unjust that he should reap extraordinary rewards as a consequence of extraordinary fortune.]

"Equity thus depending, essentially upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to positive law." [Haven't we done this? -- G.] "Law without equity, though hard and disagreeable, is much more desirable for the common good, than equity without law."

A bit of a jumble

2007-05-16T21:17:00.000-07:00

My response to august:

You bring up a lot of points I'd like to address (or richochet off of)... and in addition, I've been plowing through the book at a relatively quick pace (I'm already into Ch. V, somewhere around p. 210).

For clarity of organization, I'll probably discuss my responses here, and open a new sub-thread dealing with Ch. III... though I'm especially eager to get into Kantorowicz' discussion of Bracton...

First, you mentioned in your opening post that you'd provide a few "sidebars" about our author's biography. As a general rule, I find biographies of artists, thinkers and writers to be tedious analytic distractions. (Emerson: "Our age is retrospective. It builds the sepulchers of our Fathers. It writes histories, biographies, and criticisms." (spit that last word out with especial contempt)) But, after a close study of the footnotes, I'm beginning to wonder what the deal is with "H. Kantorowicz" - a historian who seems to have trudged through the same subjects as E. Kantorowicz, and of whose work E. has many interesting and critical things to say. Is this work the crowning product of a dynastic endeavor? Are there patria issues lurking in this text that I should be sensitive to? I'm ready to hear your sidebar now... in fact, my curiousity is positively piqued.

Second, I want to focus in on your own language for a moment. You talk about the corporeal nature of the political abstractions discussed by Kantorowicz and frequently use the word "image" to describe his project. It reminds me of a long-ago discussion with TheQuietMan, that took a rather personal turn. Rather than rehash its merits, I was trying to argue that the medieval characteristics of art and imagery pitch towards a very different aesthetic ideal than the post-Renaissance trend of accurate representation. There's a strong work I dimly recall about Medieval Imagism and Memory (Mary Carruthers). I'm also surprised by looking again at the artworks analyzed in the back of Kantorowicz's book, how strikingly good at rendering complex abstractions medieval artwork was. When you compare a modern flow chart to a medieval manuscript, you come away feeling like we're a culture of mental midgets in the realm of balancing abstract thoughts.

Take the drawing of Otto II: in which his sacramental parts, those anointed at his coronation, reach beyond the tabernacle curtain, into the coelum of Godhood, while his mundane parts rest below the curtain, upon the Throne of Earth. In my opinion, the artwork of the medieval period represents a highly developed imagistic vocabulary, whose virtues are regrettably lost to a generation that too-often measures medieval work by its failure to live up to modern aesthetic ideals rather than its success at accomplishing medieval objectives. I can think of several interesting branches related to that observation. To what extent is E.K's authorial achievement (it's palpable imagism) facilitated by his deep study of medieval iconography? In what senses do the Chinese language of symbols and images, with which you're familiar, compare to those of medieval Europe? If medieval thought represented a thoroughly different trajectory from Greco-Roman rationalism (and I suspect it did), might we better be able to comprehend our post-modern world with a self-conscious medievalism? Was the Enlightenment as much a culturally destructive iconoclasm as its predecessor in Late Antiquity?

Third, I'm excited to get the topic of ritual in the modern experience. Just last night I was at a ball game. I was struck by how demeaning some folks feel it can be to engage in "civic liturgy" - the honoring of the flag through a well-defined ritual practice. I, of course, have my own issues about liturgical propriety and flags. You say that the modern age may be experiencing a failure of imagination with regards to sovereignty. You express an interest in identifying "kinks." To build off that, I'd like to throw out three conceptions for looking at the overlapping folds of sovereignty:

Conceptual: In the American system, our Constitution lays out a pattern of sovereignty that appears to be a cascade of powers. At the "top" of the system, we find a federal government, imbued with an enumerated list of finite but supreme powers. Below this stratum, we find a system of co-equal "subordinate sovereigns" identified as states. The final locus of constitutional sovereignty is rather vaguely defined - "the people" - both the ultimate source of legitimacy for sovereign institutions, yet a group whose sovereign powers are defined exclusively by negativing state powers. Thus, "the people" have rights, which are mostly defined as an immunity to state powers over certain dimensions of private and public life.

As if this system weren't incoherent enough from it's outset... we also have several unresolved fonts of sovereign authority. Where are we to place "Constitutional sovereignty" - the ultimate authority of a piece of text, from which the sovereign powers of the defined entities emerge?

What are we to make of "The Law of Nations" - an idea which had much greater currency among the founding generation than it does today? Under international law, a system of which our nation was an avid participant until quite recently, certain practices could become proscribed by the development of opinion juris - that is, by the common custom of civilized nations. The Constitution confers power upon Congress to "define and punish ... Offences against the Law of Nations." And it grants the judicial power to "all Cases ... arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" (a somewhat controversial provision given the current battles over the Geneva Convention's proper scope). What is the relationship of the American system to this international web of sovereignties?

What about the "Natural Law?" For much of Western history, an animating conception of law is that it's merely an earthly instantiation of a more perfect celstial system. Only within the last century has American jurisprudence moved away from such a belief. But, the founding paradigms of our liberal state - especially social contractarian thought and the "right of revolution" - deeply rely the viability of an external measure of righteousness by which law is to be judged.
Space: In the medieval system, spaces divide into three kinds (though all are merely an exalted species of property)... we have the ecclesiastical holdings, the imperial holdings, and private space. The first two are notable by their indefeasibility - they cannot be transferred, for neither the Church nor the Empire is empowered to diminish its own estate.

In the contemporary Anglo-American tradition, there are similar issues of space, though I can't clearly delineate them. What does the odd "sovereignty" of a tribal reservation imply about power over space? What about the sacramental character of a courtroom's interior, with its peculiar rituals? The unique protections of the home as against the pattern of rights controlling within the public realm? Do we have a meaningful spatial comprehension of sovereignty? (doesn't Gitmo suggest we do? Or does it suggest we don't?)
Time: I have less to say on this one, though we should eventually broach E.K's discussion of Nullum tempus currit contra regem ("Time runneth not against the king."), pp. 164-65. American history is often described as a sequence of "constitutional moments" in which sovereignty itself is radically re-defined. The first of these is the founding itself. The Reconstruction Amendments are considered the second such moment. And the New Deal is generally believed to be the third. Obviously, the problem of tradition across time marked by radical breaks is a thorny one. On the one hand, legal fictions like the various "Holy Roman Empires" of Europe suggest a sempiternity to sovereign units which transcends the radical disjunctures of revolutions (contemporary 11th Amendment jurisprudence, likewise). On the other hand, that sempiternity itself is occasionally overthrown and castrated by emergent "new sovereignties" - from France's acquisition of sovereignty "by prescription" against the Roman Empire (p. 183, n. 283... an astonishing passage: "The prescription of 100 years against the empire must have been common knowledge by the end of the 13th century, because the French use it to prove France's independence of the empire by right of prescription") to the constitution of American states which acquire partial sovereignty as a function of "independence" - thus, seemingly impermissibly dividing the prerogatives of traditional sovereignty.

I'll call this post to a rest. Hopefully it's responsive and productive? I hope to get more explicitly textual in a subsequent post. I'm pretty impressed by the book's architecture... and though it doesn't get really fun for me until we get to Bracton, his prefatory discussions of High Medieval political theory lay a powerful foundation.

More on Kantorowicz

2007-05-16T17:49:00.000-07:00

Here's august's follow-on entries to our discussion of The King's Two Bodies. They're interspersed with the demands of jury duty... I'm working on a response (and have been plowing through the text...)

august:

I have fifteen minutes before I have to dash off to (gasp) jury duty, which should give me lots of reading time but very little internet time. Which is too bad, because I'm finding I have enormous amounts to say. You've raised important issues about the book (I particularly want to come to the weakness of the king vis-a-vis the King -- the capitalization being the most economic way of distinguishing the two). I also want to talk about my own research. But because I have fifteen minutes, I'm just going to talk about the conference I went to over the weekend. It concerned the Wutai complex of mountains, an area long associated with Manjusri , who supposedly gained enlightentment there.

I'm thinking about the area because, among other things, eighteenth-century Chinese emperors claimed to be reincarnations of Manjusri. This image probably appealed to Buddhist constituencies of the empire, and it also appears to have faciliated a number of rituals meant to bring long life to the imperial house.

Several quick points. First, there was nothing like a trinitarian, or even dualist, way of dealing with this image of the emperor. In other images, emperors would be depicted as Confucian Literati, and wearing that hat they would write scripts denouncing Buddhism. There was a simultaneity of imperial roles that did not require each role to be commensurate with the others. Contrast the examples provided, where king and King have a complex relationship within a single man, rather tragically so in the case of Richard II.

The obvious answer is that the King's Two Bodies is based on centuries of theological bickering over the trinity - but I think it says something else about the corporealness of the images Kantorowicz shows us. Power is naturalized in bodies, and the metaphor of the body is a central means of making different claims of sovereignty --- over oneself, over rival claimants, and over the body politic.

Mt. Wutai is also interesting because it is a tricky little zone of sovereignty. There are different Buddhist sects with temple complexes there, and the Dalai Lama turns out to have been an important figure. The area was exceptional in the empire -- it was firmly located within China proper, yet the monks representing the area had to obey certain diplomatic niceties usual reserved for distant monarchs (I could explain these ceremonies, but it's a long story). In short, the complex was a little bit like an Indian reservation -- a kink in what one might otherwise think of as a seemless web of sovereignty.

I've been wondering about such kinks. In the U.S., of course, the Trail of Tears was one way we worked out such things. In Kantorowicz, I'm wondering ways different visions of the King's Two Bodies might have been articulated in space.

Very quickly on the weakness of the king (as opposed to the King): I was reading an essay by Lawrence Wechsler (worth checking out -- it's about a historian of the Law of War who serves as a consultant to both the war crimes trial of the former Yugoslavia and to a production of Shakespeare). It's in his collection Vermeer in Bosnia. One of the points is that there was a complicated medieval law of war -- basically a chivaric code -- that did not break down until the crusades, and that remained as a remembered ideal long after. I think there was a tangential point to be made about regicide -- that in the French Revolution, killing the king and queen was less shocking than putting them on trial, which simply seemed not possible, some conjuring of law akin to Gonzales trying to talk about habeas corpus -- you just get a look on your face like -- hunh?

At any rate, these bodies, zones, territories, etc. were thought to make up a polity. That seems to me fully as mystic a fiction as any of the Christological images of the King on Ottonian bibles. "Sovereignty" is itself a tricky term in the way it simultaneously implies the person of the monarch, the borders of an area, and the collective governance of that area. Communicating such complicated relationships in an image (itself rather laden with metaphor) seems to me the work of the King's Two Bodies.

I'm going to try to find time later this afternoon to respond more directly to the points you raised, and also to say a little more about my own work. I'm amazed at how robust this work is, how much it gets me thinking every time I pick it up.

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August's Second Response:
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Anyway, all I was saying was that the king barely exists as long as there's a King around, so Richard II, stripped of being King, hasn't got a lot left.

You asked about my own academic interests. I work on the rebuilding of a city that was destroyed in an enormous (Christianity-inspired) rebellion. The religious nature of the rebellion meant that those rebuilding the city were especially concerned with religious issues. I'm particularly interested in the reestablishment of state ritual practices.

Chinese officials were required by law to make offerings to a set pantheon of gods and moral exemplars. Imperial statutes dictated the list of figures venerated, the items presented as offerings, the ranks of officials taking part, and the liturgy of the ceremonies. These rituals changed over the course of the nineteenth century.

I argue that shifts in ritual practice demonstrate an expansion of political participation in the following ways:

1. More people deliberate and have a voice in what gods and exemplars should receive offerings

2. More people (and in particular, more people who are not officials) take part in the rituals

3. More and more gods and exemplars are included in the imperial pantheon.

This last point is key. At the beginning of the nineteenth century, the emperor is the embodiment of the state -- the strength of the state is said to rest on his personal virtue, and this view is enacted and reproduced in ritual. In the wake of the rebellion I study, thousands and thousands of people who died defending the dynasty get incorporated into the state cult of rituals. As a result, key areas of the city that I study are devoted to the care of the souls of these dead figures. The strength of the state now appears to rely on their actions and virtues, rather than those of the emperor.

They are not yet citizens, but the rituals and language employed would later be used by republican governments to express the idea of nation -- citizen as opposed to ruler-subject.

In broader terms, I argue that the nineteenth century was an age of utopian visions in China -- that contending groups advocated different ideas about the polity. In each case, the polity rested on a particular way of looking at the cosmos. The relationship between cosmos and polity was displayed and enacted in ritual, hence the particular importance of ritual practices to the running of the state. The shifts I identify were not simply a transition from empire to nation-state, but rather creative improvisation of new alternatives, roads not taken that have been ignored by folks more interested in the fall of the dynasty or the rise of nationalism.

I'm particularly interested in how ritual (and other, Kantorowicz-like, representations) has power in a given place -- how particular groups might make local use of images or practices that seem to have a national audience. In the case of the King's Two Bodies, a similar set of questions might include: does the idea show up in, for example, the construction of buildings. Do different groups favor different interpretations of the relationship between King and king?

You are right that we both have contemporary concerns as well. Democracy seems to me to be under threat from a failure of imagination as much as a failure of institutions. People don't seem to get (or do get, and are powerless to do anything about) what, for example, Gitmo means as an exercise of sovereignty.

Gotta go again. Sorry this is choppy. Hope you can follow. I'm finding I have a lot to say -- feel free to chime in with whatever. I hope later on to dig a little deeper into K's text.

talk to you soon.

My entry

2007-05-13T02:39:00.000-07:00

Ummm... I'm thinking I don't want to be mid-conversation on the Fray come May 31st. So, I'll store Round #1 here:

August's opening post:

Kantorowicz is a writer who changed the way I thought about law. Granted, when I first read him as an undergraduate, my thoughts on the subject were pretty naïve, but I basically considered law to be a set of rules. Kantorowicz showed that it could be much more – a politically charged way of conceiving the world.

I think we are interested in a similar kind of problem – what happened to the unique power of monarchs? Kantorowicz's book helps define that power as a combination of mortal and immortal authority – the first being the result of the physical person of the king, the second reflecting the state itself (which, because it does not die, is in some way Christ-like). For me, the largest question (and the one that seems closest to your work) is, how do we move from this social arrangement of monarchs and subjects to one of nations and citizens?

The King's Two Bodies is probably most helpful on the first part of that question. It is a work, the author tells us, of "political theology." I'll have more to say about the concept later, but basically it means that there is belief ("fiction" in the author's words) at the very center of politics. The problem of conceptualizing the world is thus simultaneously a problem of social organization.

I study government rituals of the Qing Dynasty (1644-1911) in order to get at some of these issues. To me, The King's Two Bodies is mainly a guide to how a good historian pins down an amorphous concept. But it's also a manual of the ways states can depict and enact relationships of power.

At any rate, I propose we read the Introduction and Sections 1 and 2 (pp. 3-41 in my edition) in the next week or so. If I have time, I'll post a couple of sidebars on Kantorowicz's biography and on the genesis of the phrase "political theology."

My response:

I'd like to begin with a rephrase of the two questions you pose in your own introduction. You've asked what happened to the power of the monarch, and how have we transitioned from kings and subjects to nations and citizens. If I might reformulate the opening question, I would put it thusly:

What is the power of the sovereign and where may it lie?

I prefer this formulation, because I'm afraid to beg the question of the King's disappearance. For, one thing which has immediatley become apparent from my reacquaintance with this much of Kantorowicz and my outside research, I've already discovered that the question of the King's twin-ship is more complicated than I'd believed.

On the one hand, the King's "body natural" appears to be less than I'd realized. Whether it be Charles I's treason against his own Crown, or the nonage of Edward VI, the King's physical body seems to be a rather debased and unenviable thing. I was struck with great force by the following passage from Shakespeare's Richard II (p. 30):

For God's sake let us sit upon the ground,
And tell sad stories of the death of kings-
How some have been deposed, some slain in war,
Some haunted by the ghosts they have deposed,
Some poisoned by their wives, some sleeping killed;
All murdered - for within the hollow crown
That rounds the mortal temples of a king,
Keeps Death his court, and there the antic sits
Scoffing his state and grinning at his pomp,
Allowing him a breath, a little scene,
To moarchize, be feared, and kill with looks,
Infusing him with self and vain conceit,
As if the flesh which walls about our life,
Were brass impregnable: and humoured thus,
Comes at the last, and with a little pin
Bores through his castle wall, and farewell king!

Unfortunately, I don't have the text at hand, but it strikes me as astonishingly similar to a speech delivered by James I to his Star Chamber, in which he demands that his body be considered no different than any other subject, equally bound by the laws of his mystical Kingdom.

If the twinship of the King is rooted in the corpus mysticum of the Christian community - then the body of the King seems one Christologically debased. As a legal construct, it seems far weaker than I realized... less than fully vested with even the basic rights of English subjecthood. Needless to say, if such be the state of the doctrine, its uses for my ashamedly prosaic purposes might be fewer than suspected.

But - this notion of "twinship" infuses the Anglo-American legal tradition. The division between the person and his legal personality is an engine which drives our law forward. How can a man sue in tort after his own demise? Why, he lives on in the person of an estate, with a duly appointed executor... who may exercise his rights directly under law, as though the man himself had survived his death.

Kantorowicz's extensive footnote (#9, pp. 11-12) about the sacramental nature of coronation was fascinating to me:

"If the heir to the crown were attainted of treason or felony, and afterwards the crown should descend to him, this would purge the attainder ipso facto." [... This doctrine is in fact the secularization of the purging powers of the sacraments.

Not only is this consistent with a Catholic conception of office-holding (in which the priest's clerical office is untainted by the fleshly sins of its officeholder)... it's equally consistent with the notion of American citizenship. Under the Immigration Laws, non-citizens do not enjoy the security of their residence within this nation. If one commits a serious felony, contracts a serious disease, or even ascribes to the wrong doctrine (joining the Communist party has until only recently been a deportable offense)... one may face immediate inadmissibility, and in some cases deportability. Actions which would barely tarnish the reputation of an American citizen may subject the resident alien to immediate ejectment from our political community. But the process of naturalization "wipes the slate clean." A naturalized citizen is no less a citizen than those of us who hold it as a birthright. Upon naturalization, the new citizen obtains immediate and retroactive relief in a manner that his fellow non-citizens do not enjoy. One can be deported decades after the fact for having merely been inadmissible at the time of entry (say, for having been a Communist in the 50s). But once naturalized, the former alien can be as abysmal a member of our body politic as you or I. He shall move beyond the reach of the laws to which he was formerly subject. In this sense, nationalization is much like coronation, which in turn is much like baptism.

Another everyday manifestation of this mythology appears in the doctrine of "qualified immunity." When an agent of the government violates the law, he may be sued as an individual, but not as an agent of the government. This is why you see captions like Rasul v. Bush or Padilla v. Rumsfeld. The analytic theory is that when the actions of an officeholder exceed his lawful authority, he ceases to retain the immunity of the sovereign. The man can be held to account for the lawlessness of his actions, because he cannot be anything other than a man before the law when his actions have violated it. If a President cannot lawfully hold a suspect indefinitely without charges, then it is George W. Bush who has done so, rather than the U.S. President. To the extent that these doctrines arise from a political theology, we may call them "analytic mysticism."

In his introduction, Kantorowicz is fairly dismissive of Maitland's analytical criticism of divine Kingship. I hope to interrogate the text, as we proceed, regarding the degree of justice it gives to a rival conception within the Anglo tradition. If the English system has a genesis myth, I'd nominate the Battle of Hastings for the prize. At that historical moment, we witness the fusion of the Roman-derived Norman kindom with a wildly different native Anglo-Saxon tradition. I can't speak to Maitland, but when I discovered a 19th century author having analytic fun with the King's doubled-body, he rested his argument in history rather than logic - in an alternative Anglo-Saxon tradition of "king as highest wergeld."

To what degree are the British and American traditions driven by the engine of discordant harmonies? Of a Church which is somehow both Catholic and Protestant. Of a sovereign which is somehow both parliamentary and monarchic. Of a people who are both subject and free. The King's doubled body may be a dichotomy within a dichotomy. One question I'll be keeping eye on, is whether the move to a republic in fact represents a break with this tradition of sovereignty, or merely a refinement of it.

I eagerly look forward to this discussion, and especially how it relates to the context of your own studies. Though I'm likely to infuse it with constant reference to legalisms, I think what may be at stake for us both is in fact a very personal question - what does it mean to be an American... a personality constituting and constituted by a political system of rituals and laws.

Investigations

2007-05-10T13:11:00.000-07:00

So, spent some quality time in the stacks yesterday. Stained my pants with that weird brown dust that falls from 19th-century volumes. Still, found some good books and also spotted some misconceptions I may have made.

The most relevant cluster of books were in the section on English sovereignty (KD 4435). There's an 1820 volume from a guy named Chitty, entitled Prerogatives of the Crown, that summarizes the various rights inherent in the king and situates them in the metaphysical exchange between the political body and the natural body. To illustrate that these doctrines were never monoloithic, even when they were at their peak, there's a devastatingly arch critique of Chitty in a book from 1840 by Allen, entitled On the Royal Prerogative, that takes Chitty's analysis to task with sarcasm and clarity. He doesn't name Chitty, but his rebuttal is clearly framed with Chitty in mind. Also, he provides his own fascinating history of Anglo-Saxon kings... he notes that under the Anglo-Saxon wergeld system, the King possessed a "blood price" (the amount of restitution needed to atone for killing him) that was highest as a degree, but no different in kind, from what applied to everyone else. However, there was an exception to wergeld - you couldn't pay a blood price for killing your hlaford... a lord to whom you'd sworn allegiance. The argument seemed to be developing towards an analysis of Kingship as the "universal hlaford" replacing the requirements of wergeld with the notion of treason.

Also, it begins to look like Francis Bacon was the John Yoo of his day. There's a lot of great material coming from Bacon about the King's plenary powers. Several citations that came up were his arguments on De rege inconsulto, De non procedendo reg inconsulto, and the "Essay of Judicature." Also, James I seems to have had a bit of the Bush... "That which concerns the mystery of the King's Power is not lawful to be disputed; for that is to wade into the weakness of princes, and to take away the mystical reverence that belongs to them that sit in the throne of God." Some relevant citations: 2 State Trials 765, 3 State Trials 37, James' Speeches to the Star Chamber as cited in a text identified as "Prothero".

Another book to investigation more fully is W. Harrison Moore, Act of State in English Law.

If an idea's merit can be assessed by the number of it's plagiarists, Blackstone's Commentaries were a very good idea indeed. Astonishing how many subsequent tomes of English law are explicitly modeled on the Blackstonian work (Broom, Jenks, Stephen). There's no way I can read all four volumes. But the following chapters seem most relevant:

Vol. I: Of the Rights of Persons

Ch. 1: Of the Absolute Rights of Individuals
Ch. 2: Of the Parliament
Ch. 3: Of the King and his Title
Ch. 4: Of the King's Family
Ch. 6: King's Duties
Ch. 7: King's Prerogatives
Ch. 9: Subordinate Magistrates
Ch. 10: The People whether Aliens, Denizens or Natives

Vol. II: Of the Rights of Things

Ch. 27: Of Title by Prerogative and Forfeiture

Vol. III: Of Private Wrongs

Ch. 17: Of Injuries Proceeding From or Affecting the Crown

Vol. IV: Of Public Wrongs

Ch. 7: Of felonies injurious to the King's Prerogative
Ch. 8: Of Praemunire

Now, what have I misunderstood? First off, "dignity" isn't what I thought it was - it's not some abstract concept... it's a very technical term-of-art applying to hereditary entitlement. There are entire volumes explaining the significance and structure of dignities. As such, the "dignitary" analysis of the Conservative majority becomes way suspect... how is it appropriate to use that approach at all within a republican context? Keep a sharp eye out for the different ways jurists use the term "dignity" - is there concept-conflation going on between the American sense of "dignity" (intrinsic worth) and the English one (aristocratic nobility)?

Also, there seems to be a lot of opinion that the King's body doesn't actually enjoy any special privileges. There's an exchange of properties... a metaphysical intermixing between the two. But the King's physical body appears not only to be an ordinary mortal frame... it appears to be on par with that of other subjects. Thus, the King's physical body is equally subordinate to the King's political identity as any other Englishman. However, because the intangible body is focused on the physical one, there are certain transformations that take place - not all favorable to the privileges of the King. For example, a King can't use the defense of nonage against an abusive contract. Since his regal body is immortal, it can't be underage. So if an infant king makes a contract, it isn't subject to recission on the basis of nonage. The King can't be a witness in a case of treason.

That's not to say that there aren't two tiers of kingly privilege. Just to say that the distinction may not be as clear cut as I suspected. Many of the "incidental prerogatives" of the King still seem to attach to his regal identity, even though their exercise isn't an "Act of State" embodying the full power of the sovereign. It's not clear that there is in fact a coherently intelligble cluster of personal rights to be derived from these principles, however.

Also, the question of Parliamentary sovereignty is a very tricky one. It'll be worth paying close attention to Blackstone's division of personal rights between Parliaments, individuals, and the King... and also what character of rights are deemed universal.

An Old Harvard Law Note

2007-05-09T16:57:00.000-07:00

For some reason, my blogger dashboard is rendered in Chinese characters. Very odd.

Anyhow, I'm at UCLA right now, which means I can access this 1934 Harvard law note on the priority of state deposits in bank insolvencies. Good beans for me! (Harvard Law Review, Vol. 47, No. 5 (Mar., 1934), pp. 841-846.)

So, to summarize. At the time of the note's writing there was an active clash of principles among various state divisions about the right of a state to "jump to the head of line" in recovering assets against insolvent banks. To the extent the right was recognized, it was seen as an explicit inheritance by the state of the prerogatives of the King under the common law. As the author states, a reviewer of the case law "is apt to find a learned discussion of the English common law prior to the reign of James I." The article claims that analysis hinges upon a tricky distinction between the "incidental" and "political" rights of the King, and the cases uphoding the right seem to rest their logic on the conclusion that the right attaches to the political character of kingship (thus strengthening my contention that incidental prerogatives have not been seen as devolving by right to the state in the American legal tradition). Thus, it's worth exploring how courts so finding consider the import of an opposite ruling... what would it mean for an American republican government if the right were merely "incidental?" Do they take it for granted that it would then be impossible to uphold as a privilege of the state?

The trend away from recognizing the prerogative as one inherent in states is broadly informative, and probably bears a logical connection to the in rem exception to Article I sovereign immunity that's developed in the notes of the Hart & Wechsler supplement. But the action I'm most interested in really takes place in the note's feet.

Footnote 5:

Coke on Littleton: "... the king by his prerogative is to be preferred in payment of his duty or debt by his debtor before any subject, although the king's debt or duty be later; and the reason herof is that thesaurus regis est fundamentum belli, et firmamentum pacis." Co. Litt *131(b)

Footnote 7 is also relevant for bibliographic purposes.

The courts generally point out that although the right arose from the royal prerogative, it was not a prerogative incident to the person of the king, but rather one attaching to him in his political character as head of the state. See In the Matter of the Carnegie Trust Co., 206 N.Y. 390, 397, 99 N.E. 1096, 1099 (1912); United States Fid. & Guar. Co. v. Bramwell, 108 Ore. 261, 268-269, 217 Pac. 332 335 (1923)

According to Footnote 10, cases rejecting the right cite to Kent's Commentaries: I Kent's Comm. *247, 248.

Footnote 8 lists cases which have recognized the prerogative (since this is a matter of state law, there is very little federal precedent on these points):

Among the more recent cases recognizing the prerogative are: People v. Dime Sav. Bank, 350 Ill. 503, 183 N.E. 604 (1932); Ghingher v. Pearson, 168 Atl. 105 (Md. 1933); American Surety Col. of N.Y. v. Pearson, 146 Minn. 342, 178 N.W. 817 (1920); Aetna Acc. & Liab. Co. v. Miller, 54 Month. 377, 170 Pac. 760 (1918); In re South Philadelphia State Bank's Insolvency, 295 Pa. 433, 145 Atl. 520 (1929); Maryland Casualty Co. v. McConnell, 148 Tenn. 656, 257 S.W. 410 (1924); United States Fid. & Guar. Co. v. Central Trust Co., 95 W.Va. 458, 121 S.E. 430 (1924); and cf Northwestern Nat. Bank of Superior v. Superior, 103 Wis. 43, 79 N.W. 54 (1899).

Footnote 11 lists jurisdictions coming out the other direction n the basis of an extended common-law analysis:

Green v. Homewood, 222 Ala. 225, 131 So. 897 (1931); Maryland Casualty Co. v. Rainwater, 173 Ark. 103, 291 S.W. 1003 (1927); Board of County Comm'rs of San Miguel County v. McFerson, 90 Colo. 408, 9 Pac.(2d) 614 (1932); Lake Worth Inlet Dist. v. First Am. Bank & Trust Co., 97 Fla. 174, 120 So. 316 (1929); Fidelity & Deposit Co. of Md. v. Brucker, 183 N.E. 668 (Ind. 1933); Leach v. Commercial Sav. Bank, 205 Iowa 1154, 213 N.W. 517 (1927); Denny v. Thompson, 236 Ky. 714, 33 S.W.(2d) 670 (1930); Commonwealth v. Commissioner of Banks, 240 Mass. 244, 133 N.E. 625 (1922); Fry v. Equitable Trust Co., 264 Mich. 165, 249 N.W. 619 (1933); Potter v. Fidelity & Deposit Co. of Md., 101 miss. 823, 58 So. 713 (1912); In re Holland Banking Co., 313 Mo. 307, 281 S.W. 702 (1926); Freeholders of Middlesex County v. State Bank of New Brunswick, 29 N.J. Eq. 268 (1878), aff'd 30 N.J. Eq. 311 (1878); North Carolina Corp. Comm. v. Citizens' Bank & Trust Co.., 193 N.C. 513, 137 S.E. 587 (1927); Fidelity & Casualty Co. of N.Y. v. Union Sav. Bank Co., 119 Ohio St. 124, 162 N.E. 420 (1928); State v. Harris, 18 S.C.L. 598 (1832); United States Fid. & Guar. Co. v. Carter, 170 S.E. 764 (Va. 1933); cf Phillips v. Yates Center Nat. Bank, 98 Kan. 383, 158 Pac. 23 (1916); Columbia Bank & Trust Co. v. United States Fid. & Guar. Co., 33 Okla. 535, 126 Pac. 556 (1912)

There's no way I can read all those cases. But they're surely worthy of a skim both to get a sense of how they use the doctrinal development, the portability of the arguments advanced into the contemporary doctrinal landscape, and the relevant authorities upon which they rest.

There's also a cluster of cases which the author cites as holding "the prerogative is an indivisible sovereign right lodged only in that political body representative of all the people."

Aetna Casualty & Surety Co. v. Bramwell, 12 F.2d 307 (D. Ore. 1926) [I like this one because it's a) a federal court; and b) used the exact phrase "residuum of sovereignty" that I was so proud of -- G.], County of Glyn v. Brunswick Terminal Co., 101 Ga. 244, 28 S.E. 604 (1897); People ex rel. Nelson v. Home State Bank, 338 Ill. 179, 170 N.E. 205 (1930); Campion v. Village of Graceville, 181 Minn. 446, 232 N.W. 917 (1930); Bignell v. Cummins, 69 Mont. 294, 222 Pac. 797 (1923); Board of Comm'rs San Miguel County v. People's Bank & Trust Co., 34 N.M. 166, 279 Pac. 60 (1929); In re Northern Bank of N.Y., 212 N.Y. 608, 106 N.E. 749 (1914); United States Fid. & Guar. Co. v. Rainey, 120 Tenn. 357, 113 S.W. 397 (1908); County Ct. of Calhoun County v. Matthews, 99 W. Va. 483, 129 S.E. 399 (1925).

Broad Notes on Political Theory

2007-05-09T01:44:00.000-07:00

This post has two purposes. One, I want to do some grand-level conceptual clarification. Two, I want to itemize some texts of personal relevance in my private library. The latter purpose could seem unbearably pretentious, so let me remind you that you're reading at your own risk.

Originalism takes as its launching point the belief that contemporary materials are the most legitimate source material for clarifying ambiguities in Constitutional and statutory texts. For the most part, Scalia-class conservatives are most enamored with analysis of English common law around the period of the founding. But one of my theses, broadly consonant with bridging the gap between Souter and Kennedy, is that such thinking has to take into account the (historical) normative implications of advocating for and implementing a specifically republican political system in the wake of experience under kingship.

I can think of six canonical authors that would be critical to such a project: Locke, Rousseau, Smith, Montaigne, Hobbes, and Bentham. I'm deeply familiar with the first two, though I must revisit Locke. I think one can argue that its his rootedness in the Anglo tradition of political theory which saves him from the trap which Rousseau falls into... of a tyrannical "General Will" running roughshod over the "citizen/subjects" whose consent has brought it into being. The last time I went over this ground deeply, I was more interested in the problems of completeness inherent in self-regulating systems. At the time, Locke struck me as hopelessly dependent upon baseless and unreasonable assumptions which invalidated his argument at the starting gate.

Now that I'm squarely in my post-metaphysical phase, I suspect what drove me nuts last time was actually a shrewd intellectual maneuver (an "act of faith," if you will) that used strategic axiomatics to avoid paradox. The incoherence of law is aggravating, but I can't deny the utility of axioms for a system that has to actually be implemented. To what extent do the assumptions and backgrounds of the English common law tradition save "popular sovereignty" from the perils of incompleteness? I suspect both Smith and Locke use "matters of course" to craft a blueprint for a "liberal polity" which help to explain the structure of the American political system.

I've only read some Montaigne, during my unstructured post-collegiate journey. He's a delightful read, and clearly a formative influence for all of the other thinkers I've mentioned, as well as many of the founding generation's leading lights.

I suspect that a triangle can be formed between Locke, Smith and Montaigne which accurately describes what a republican government is. Rousseau is useful for an illustration of what it cannot be. de Tocqueville is interesting as an ethnographic account of the system's early phase, infused with sharp political theory acumen.

Hobbes, whom I haven't read, strikes me as a potential challenge to the theory... since he seems a sort of anti-Locke in the English tradition. For that reason alone, he's probably worth investigating during the course of this project.

Bentham's on the list because he was a serious legal scholar in addition to a philosopher, and I've gotten to the stage of life where I'd like to track some of that work down. I've got a copy of Mill's "On Liberty" (which must be mislaid, because it didn't find its way onto my list below). I don't have Utilitarianism. I do have a theory, though... that utilitarianism is a post hoc moral justification for liberal ideology... it's a rationalization which would have been completely unthinkable without coming from within the liberal tradition. In my recent thinking, it's utilitarian theory which saves liberalism from the rather obvious moral critique which otherwise sinks it. To the extent that it's an excuse, not a theory, I think it's a mistake of modern thought to treat it as a premise of liberalism, rather than a byproduct. Not sure what the further implications are of that... beyond the rather obvious point that the Constitution is manifestly not a utilitarian document, and the justification for the Boyd regime's fall in American law (the modern administrative state would be impossible!) is an assault at its ideological cornerstone.

That's kind of rambling. But I'm just trying to slot the political thought-blocks into proper places. On to the list:

Books On-Hand

The following list does two things... it tests the value for my project of certain books that are united mostly by the coincidence of being already at hand on my book shelf. And it provides an incomplete list of things I mean to read this summer (certain other texts, like the Green Book of Poker and The Bible aren't on it). It's for my own reference, so don't be misled. I'm not this big a disaster.

Kantorowicz, The King's Two Bodies: A Study in Mediaeval Political Theology - This work provides the foundation for my original insight and is in many respects my launching point for this investigation. I've also committed myself to a reading discussion of it. So I'm on the hook with this one, come hell or high water. Priority: Highest
Amar, The Bill of Rights - I can't say for sure that this book is relevant. But Amar is a Federal Courts professor of no small stature, which is one reason to read it. The book is a gift, which is another. It deals with personal rights, which is highly relevant to my purposes at present. And I haven't read it before. Priority: Very High
Locke, Second Treatis of Government - I've been meaning to revisit this text for years. Since a good part of my argument will be grounded upon "proper understandings" of English republican and liberal political theory, a proper understanding of Locke is essential. Though I've read him, I feel that the decay of memory, the different focuses of my youth, and the particular nature of this text have combined to give me an accurate but incomplete understanding of his argument. It always seemed irredeemably flawed on the basis of its specious appeal to a "state of nature" - an objection which I now suspect fails to respect the book on its own terms. I should definitely read it this summer. Priority: High
Weber, The History of Commercial Partnerships in the Middle Ages - I just bought this book, and am hoping that it could deepen my understanding of Kantorowicz's argument, since it wades into the same ground and lays the ground work for Weber's later analysis of American culture. I suspect it'll be useful as a comparison to The King's Two Bodies, and as such, I consider it Priority: High.
Rousseau, The Social Contract. A classic, and interesting for its identification of a paradox in contractarian thought - by what mechanism are the rights of persons to be guaranteed in the face of "general sovereignty?" It completely fails to resolve this riddle, postulating a unconstrainable "tyrrany of the majority." Cross-read with Locke, it gives a contrasting example to illustrate how the English tradition of common-law led to a uniquely stable liberal system. It's useful in a broadly philosophical sense, but I'm also very familiar with it already. It can be used to leverage my critique of the Conservative Court's central intellectual failing (a lack of fidelity to republican principles). Also, it'd be fun to accuse Scalia of being too French. Priority: Medium
Smith, The Wealth of Nations. I bought this just before coming to law school, and was making happy progress through it before I first met Civil Procedure. It's a fat tome, and I feel like "only" making it 320 pages before laying off for a year and a half suggests I might as well start over. That's insane. It's foundational, it's huge, it's often cited and seldom read. As an American, I have a duty to understand it better. But, it's got a little too much prolixity to be of much help. At the same time, if I don't read it while I'm back in school, when will I be able to? Give it a Priority: Medium
Richstatter, Liturgical Law: New Style, New Spirit - a 1960's era tract discussing the radical revision to liturgical law at the Vatican II Council. This is high on my general reading list, but low on this project's reading list. In fact, downright irrelevant. But, I'm really intrigued at the conceptual division in the Church between "canonical" and "liturgical" laws, and whether such intellectual divisions can be of any use within secular doctrine. Given my absolute fury at O'Connor's description of "ceremonial deism" in the Newdow ruling, it might give me intellectual leverage for thinking through my recent concerns regarding "civic liturgy" - which may be a sorely neglected mode of thought in contemporary legal and political discourse. So, despite near-complete irrelevance, I'm going to bootstrap it into the bottom tier of Priority: Medium... after all, these posts will, to some extent double as a summer reading list.
Tocqueville, Democracy in America. I've made two previous goes at this work, and feel like I messed it up both times. I'm not confident that a third read will do me much more good. But, it might be worth skimming for relevance in terms of ordering the "grand political" thoughts about the nature and content of a specifically American republican vision. Priority: Low
Arendt, Between Past and Future: Eight Exercises in Political Thought - Only on the list because I wish it were relevant, and I've been meaning to revisit several essays for a couple of years now. Especially: The Concept of History: Ancient and Modern; What is Authority?; What is Freedom?; Truth and Politics. It's on my to-do list anyhow. I can't justify displacing an actual priority on its account. But I can flatter myself that it's virtuous leisure reading. Priority: Low
Kant, Political Writings: There's a lot of essays I still wish to read in this tome. But Kant's political thoughts are most famous for begetting those of Hegel, which in turn beget Marx, which begets the antithesis of the American political order. But there are some essays which look colorably relevant: On the Relationship of Theory to Practice in Poltiical Right; Introduction to the Theory of Right, Pts. I & II; On the Agreement between Politics and Morality according to the Transcendental Concept of Public Right. Interesting stuff, but probably not relevant. Priority: Low
Machiavelli, The Prince - Another library staple for anyone who's received a passing liberal arts education. Vaguely relevant, in that it usefully analyzes the powers of kings. However, it's not really on-point. I doubt very much that I've cause to cite it, and am familiar enough with it that I can't really justify reading it again. Priority: Low
Ayton and Price, The Medieval Military Revolution: This book is a testament to why I shouldn't live near used book stores. I've never read it, but would love an excuse for it. I very much doubt its relevance. But, there is a interestingly titled essay on p. 81 by Andrew Ayton: Knights, Esquires and Military Service: The Evidence of the Armorial Cases before the Court of Chivalry. Who wouldn't want a pretext to read that? Priority: Very Low
Arendt, The Portable Hannah Arendt: Possibly relevant in that it contains some discussion of political theory from a liberal perspective. The only essay that seems it could be relevant (and mainly just to bolster a point) is the Reflections On Little Rock... which, in my opinion is a devastating critique of the incongruity between liberal ideals and liberal methods in the years since the New Deal. But I've already read that essay several times, and recently. The essays I haven't read are either not on point or already included in Between Past and Future. Hence, Priority: Very Low
Rawls, Theory of Justice - I've already read this book twice, and it has the... uh... "virtue" of being the kind of book where once is enough. However, it's a touchstone of much contemporary political thinking, and is especially popular in certain legal circles. Despite some manifest shortcomings, it can be useful for review of some important terminologies and it has a bibliography worth checking in on from time to time. If I have to decide which books to throw in the trunk of a car, this should probably come along for the ride even though I don't actually intend to read it. Priority: Very Low
Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes - an angry tirade against the history of legal positivism. Though the author's clearly an arch-conservative, it's funny that I largely agree with him. But I haven't been able to finish the book because it struck me as delusional, angry, and simple-minded. Uh, but it's also a gift from someone I highly respect... so I've probably not given it enough credit. (Is it just poorly written?) Because I should maybe read it and because it's maybe somewhere near my target zone, I'll put it down as Priority: Lowest

Dealing with the Constitution

2007-05-08T20:29:00.000-07:00

Hey, sports fans. If you've been properly ignoring this site, then it won't bother you if I turn it to somewhat (more) idiosyncratic purposes. If you've still got me in your RSS feed, you might want to turn that off... expect boredom.

Below is a bibliographic list of things to check out. I'm mostly posting it here so I'll have easy access to it from the library computers. This isn't meant to entertain.

Culled from Hart & Wechsler:

Althouse, The Alden Trilogy: Still Searching for a Way to Enforce Federalism, 31 Rutgers L.J. 631 (2000)
Berman, Reese & Young, State Accountability for Violations of Intellectual Property Rights: How to "Fix" Florida Prepaid (And How Not To), 79 Tex.L.Rev. 1037 (2001)
Dorf, No Federalists Here: Anti-Federalism and Nationalism on the Rehnquist Court, 31 Rutgers L.J 741 (2000)
Farber, Pledging a New Allegiance: An Essay on Sovereignty and the New Federalism, 75 Notre Dame L.Rev. 1133 (2000)
Fletcher, The Eleventh Amendment: Unfinished Business, 75 Notre Dame L.Rev. 843 (2000)
Hartley, Alden Triology: Praise and Protest, 23 Harv.J.L. & Pub. Policy 323 (2000);
Hill, In Defense of Our Law of Sovereign Immunity, 42 B.C.L.Rev. 485 (2001)
Jackson, Principle and Compromise in Constitutional Adjudication: The Eleventh Amendment and State Sovereign Immunity 75 Notre Dame L.Rev. 953 (2000)
Jackson, Seductions of Coherence, State Sovereign Immunity, and the Denationalization of Federal Law, 31 Rutgers L.J. 691 (2000)
Karlan, The Irony of Immunity: The Eleventh Amendment, Irreparable Injury, and Section 1983, 53 Stan.L.Rev. 1311 (2001)
Marshall & Cowart, State Immunity, Political Accountability, and Alden v. Maine 75 Notre Dame L.Rev. 1069 (2000)
Marshall, Understanding Alden, 31 Rutgers L. J. 803 (2000)
Merico-Stephens, Of Maine's Sovereignty, Alden's Federalism, and the Myth of Absolute Principles: The Newest Oldest Question of Constitutional Law, 33 U.C. Davis L.Rev. 325 (2000)
Nagel, Judges and Federalism: A Comment on "Justice Kennedy's Vision of Federalism", 31 Rutgers L.J. 825 (2000)
Orth, History and the Eleventh Amendment 75 Notre Dam L.Rev. 1147 (2000)
Pfander, Once more Unto the Breach: Eleventh Amendment Scholarship and the Court, 75 Notre Dame L.Rev. 817 (2000)
Shapiro, The 1999 Trilogy: What is Good Federalism?, 31 Rutgers L.J. 753 (2000)
Sherry, States Are People Too, 75 Notre Dame L. Reve. 1121 (2000)
Tidmarsh, A Dialogic Defense of Alden, 75 Notre Dame L.Rev. 1161 (2000)
Vazquez, Sovereign Immunity, Due Process and the Alden Triology, 109 Yale L.J. 1927 (2000)
Volokh, Sovereign Immunity and Intellectual Property, 73 S.Cal.L.Rev. 1161 (2000)
Wells, Suing States for Money: Constitutional Remedies After Alden and Florida Prepaid, 31 Rutgers L.J 771 (2000)
Weinberg, Of Sovereignty and Union: The Legends of Alden, 876 Notre Dam L. Rev. 1113 (2001)
Woolhandler, Old Property, New Property, and Sovereign Immunity, 75 Notre Dame L.Rev. 919 (2000)
Young, Alden v. Maine and the Jurisprudence of Structure, 41 Wm. & Mary L.Rev. 1601 (2000)
The Supreme Court's Federalism: Real or Imagined?, 574 Annals Am.Acad.Pol & Soc.Sci. 9 (2001)
Symnposium, New Directions in Federalism, 33 Loy.L.A.L.Rev. 1275 (2000)
Symposium, Shifting the Balance of Power? The Supreme Court, Federalism, and State Sovereign Immunity, 53 Stan. L. Rev. 1115 (2001)
Noonan (book), Narrowing the Nation's Power (2002)

Short Textual Exposition

2007-04-18T03:20:00.000-07:00

After the beginning, God reconsidered. "Upon further reflection, Let there be Light." Then the Lord saw that it was good.

You see, in the Beginning was the Word, and the Word was with God. After the Word, comes the light. The light shone upon the world, which we know to have preceded the light. It's not clear whether the world preceded the Word. If not, we can suspect that the world was designed by the Word. "Let it be dark and wet and still," speaks the Word, "and let nothing happen within it."

If the world preceded the Word, we must expect its qualities were described by a thought. A vision of darkness, wetness, stillness. Perhaps it was the physical manifestation of this ugly image that drove the Lord to proclaim, "Let there be Light." If such were the case, we might reasonably state: "Before the Beginning was the World, and the Lord said, with a tone of disapproval, 'It is too dark. Let there be Light.'"

Around the Beginning,
Was the World
And the World was of God.
The Word falls like a curse
Upon a wayward son.
Stung by the rebuke,
He shines towards his Father.

In the beginning, there was darkness.
Blessed and blameless was the darkness
in the beginning, when the darkness was.

A Quantum Theory of Sovereign Immunity?

2007-04-18T02:55:00.000-07:00

Just a quick note here, regarding Alden v. Maine and sovereign immunity.

I'm wondering if there's an argument to be made that the doctrine of sovereign immunity as expounded by Kennedy could be considered violative of the Article IV guarantee of a "Republican Form of Government."

Assume, arguendo that Kennedy is basically right and that the doctrine of sovereign immunity survives wholesale transplantation from a monarchical regime of law to a Republican one. In the monarchical regime, the sovereignty of the state was co-extensive with the body of the King. In a Republican regime, the sovereignty of the state must then be logically co-extensive with the body of the People.

As the ultimate repositories of state sovereignty, "the People" then would each constitute in their person an "atomic unit" of sovereignty.

Now, to state this proposition in its fullest absurdity, one could then argue that "sovereign immunity" is a defense available to any citizen before a court of law (hello, anarchy!).

But why shouldn't individual citizens then inherit a "residuum of sovereign immunity" commensurate with their embodiment of the sovereign authority of their state? Specifically, if a sovereign cannot be prosecuted for lawlessness without its own consent, then no citizen should be held to account for violation of a law of the state of which that citizen is unaware. Ignorance of the law should be a valid excuse under the same logical principles of sovereign immunity (read through the lens of Article IV).

Since a person ignorant of the law cannot give consent to be subject to it, wouldn't it be logically consistent with such a Constitutional theory (untethered as it is from Constitutional text) to allow ignorance as an excuse?

There's more to this than I care to develop at present. But hopefully I'll get back to this line of reasoning.

My healthcare story.

2007-01-23T01:33:00.000-08:00

Oigh. It's hard to pump it through from paper to public this quickly... usually things like this stew for a year or two in my kill-file. But I've had some practice telling this one:

It was a cold and windy day, colored Northern California gray. I was a student back then, sitting in the Union cafeteria, working on the daily crossword puzzle. A door opened, a cold draft blew in, and I shivered. Thus began my multi-month odyssey through the medical system.

I’ve shivered from cold thousands of times before. Nothing remarkable had ever come of it. But this time, the shuddering didn’t stop. The muscles in my upper body would clench, vibrate and release… over and over again… like a full-body pulse.

I was pretty concerned by this, so I focused all my willpower on bringing the shudder under control. Within a few minutes, my shoulders relaxed. I went to my afternoon class with my hands shaking like a Parkinson’s patient. Later that evening, my right arm gradually quieted down.

“At least it’s passing. By morning, I’ll be fine.”

It was hard to sleep with my arm convulsing every few seconds. I’d lie down, try my hardest to relax, and pray that my left arm would fall to sleep. After several fruitless hours, I abandoned all hope of sleep. I had a productive night, reading through dawn.

The next day, I attended a friend’s dissertation defense. I mentioned my problem, and showed off my arm’s strange performance act. Back then, I was accustomed to all-nighters. This couldn’t be something two days of exhaustion wouldn’t cure. But it was hard to sleep with my arm so hyperactive.

By dawn, I was entering my third consecutive day without sleep. I remember hearing as a boy that a man loses his mind after four days without sleep. An elderly Korean War vet had told me that, and I assumed he had grounds to know. I went to the student health clinic. I was told that the soonest possible appointment would be two days hence.

At the office that afternoon, my boss, an Assistant Dean, noticed that I was haggard and shaking. I explained the situation. She hit the roof and arranged an appointment at the clinic for first thing the next morning.

When I arrived for that visit, I was entering the dreaded fourth day without sleep. All this time, the muscles in my left arm had contracted and released with the distracting regularity of a metronome. The clinician told me I had allergies, and offered some antihistamines.

My boss was livid. I was walking through a dream. Calls were placed to the local hospital—a teaching institution—and I was given a priority neurology appointment for the next day.

The next morning, I was sharing breakfast with a disabled Olympian. She wanted to know what five days without sleep felt like.

“An ocean storm inside an eggshell.” I was spending a lot of energy staying calm—speaking slowly, deliberately, without affect. Emotionally, I was torn up inside—ranging from tears to laughter to anguish within the space of seconds. And all that time, that damn arm just kept pulsing, pulsing, pulsing. I wanted to cut the damn thing off and be done with it.

That afternoon, at my appointment, I was seen by a student intern. She looked at my arm. Took my blood pressure. Looked at my arm. Hit my knee with a hammer. Looked at my arm. Then she left the room.

When she returned, there was another intern. “Look at this.” He looked at my arm. Pulled up my eyelids. Looked at my arm. Pressed my neck. Looked at my arm. They both left.

When they returned, they were accompanied by another man, introduced as the “Chief Resident.” He performed all the same gestures and spent a longer time gazing ponderously at my arm, fist pressed to chin. All three left.

When they returned, they had an older man with them—apparently a full-fledged doctor. Poke and look, poke and look, questions all around. By now, my symptom report had been learned by rote. And out he went, gaggle of residents in tow.

Next came a second doctor, no more successful than the first. When he returned, he brought the whole mob—two doctors and three residents, along with a blonde woman identified as the Chief Neurologist.

“At last, I’ve reached the head of their tribe.”

I was examined anew. I had to repeat my answers to previous questions. I undressed. Was pushed and pressed and poked. The Chief Neurologist fled, leaving her posse behind.

When she returned, she had a bald man with her—a “visiting expert” with a heavy German accent. Looking, looking, looking, then the whole troop stampeded out the door.

I didn’t like what I heard next. Whispery shouts. “It must be a tumor.” “I haven’t seen anything like it.” “So what should we do?” They were conferring just outside the door!

The herd burst back in. Their leader, the Chief Neurologist, asked whether I’d be willing to spend the night?

The rest of the day was an out-of-body experience. I moved through the department like animated meat. Things were taped to my head. Strobes were flashed in my eyes. I was laid onto a gurney. A needle went into my veins. I finally slept.

When I awoke, days had passed. I was fiending for a cigarette. A doctor arrived.

He gave me a long list of conditions I conclusively didn’t have. My arm was still spasming.

“So what is it?”

“We don’t know.”

“So what now?”

“Well, the good news is we know all the things that could probably kill you. And it isn’t any of them.”

“So what is it?”

“We don’t know.”

“So what now?”

“Come back for observation in two weeks.”

“How will I sleep?”

“Take this prescription to the pharmacy. Take a dose of Atavan, a muscle relaxant, every four hours. You’ll sleep.”

The next six weeks were a groggy time. My arm kept twitching, but I often slept.

On my third visit, the Chief Neurologist wanted to know if I was experiencing any stress.

“Well, my arm won’t stop twitching, and nobody seems to know why.”

“Before that. What was your life like?”

“Pretty good. My grades are fine. My jobs are sometimes stressful, but nothing too tough to handle.”

“Jobs? How many jobs do you have?”

“Three.”

“And you’re a student full-time?

“Yes.”

“Isn’t that stressful?”

“I haven’t thought of it that way.”

“Has anyone died lately?”

“My grandmother.”

“Did that make you sad?

“Yes. I missed the funeral.”

“Does that depress you?”

“I don’t think so. I hear my cousin brought a gun to the ceremony, so I’m not too busted up over missing it.”

“How’s your love life?”

“Could be better. How’s yours?

“Have you had any romantic stress?

“Unrequited love. But they say that’s a bore…”

“What can you tell me about that?”

”What is there to say? I really like him. He doesn’t feel the same for me.”

“Him? Don’t you mean ‘her?’”

“No, I don’t mean ‘her.’ I mean ‘him.’ He’s a guy.”

“Are you a…” and here, her voice drops to a scandaled whisper, “… a homosexual?”

”I’m queer.”

“That’s a self-hating word. There’s nothing wrong with…” and here she drops back into her hushed register” … with homosexuality.”

“Well, I don’t like that word. It’s a doctor’s word, and it reeks of pathology. I consider myself queer.”

“But queer is an insult.”

“Not to me.”

“Do you hate yourself?”

“Just the opposite. I’m full of myself.”

“How long have you known that you’re a… a, homosexual?”

“Two years.”

“That short?”

“It feels long.”

“How did you feel when you came out?”

“Like a weight had been lifted from my soul.”

“I think you’re depressed about being gay.”

“I don’t.”

“Well, it wasn’t long ago. And that must be a source of stress. I think your arm is psychosomatic. And your recent discovery of your… of your homosexuality… that must be related.”

“You’re saying my arm twitches because I’m depressed?”

“I think so.”

“And I’m depressed because I’m gay?”

“Probably so.”

“Doest it matter that I don’t feel depressed?”

“How would you be able to tell?”

I was young. And in college.

“Fair point.”

“I want to prescribe Zoloft, an anti-depressant, and refer you to a psychiatrist.”

“Is there nothing else you can do?”

“I’m pretty sure there’s nothing physically wrong with you.”

“Well, OK then. You’re the doctor.”

My boss was skeptical that I was twitching from depression. But, she knew a wonderful shrink I could see. He was gay too!

By the time I saw him, the Zoloft had kicked in. I know folks whose lives were saved by anti-depressants. So don’t get me wrong when I say that Zoloft offers emotional stability—but only a notch above the humanly tolerable. Being on Zoloft had all the joy of watching puppies die, 24/7. I’d never been so relentlessly and consistently unhappy in all my life.

I didn’t want to kill myself. But I could hardly bear living that way.

After two weeks of sessions, the psychiatrist decided I wasn’t depressed, and gave me permission to lay off the Zoloft. The four-hour depressant struck him as excessive, so I was prescribed a daily dose of Valium before bed.

The next three months were a bizarre time. I struggled through school, cutting back my course load and my work load. A generous friend who’d dropped out into Silicon Valley wealth covered my tuition shortfall. My grades suffered.

The psychiatrist was really interested in my sexual history. He maintained that my arm was a physical problem. We tried a variety of solutions. I took anti-inflammatories. Vitamin supplements. He doped me up with Barbitol (aka “truth serum”) and dredged my subconscious. I’ll never forgive him for turning off the camera when the topic turned to sex. I had demanded a videotape as a precondition to the procedure. The rest of our sessions he would selectively reference things I’d revealed in a conversation only he remembered.

He finally hit upon a radical suggestion—I should see an acupuncturist. I wasn’t a believer in Eastern Medicine, and had begun to reconcile myself to a future as a quivering wreck. But I hadn’t yet disobeyed a doctor. If he thought it might work, why not give it a try?

I expected a timid little Chinese guy, spouting profound non-sequiturs. Instead, I got a boisterous, burly Brooklyn Jew. He gave me a brief personal history—it was the Sixties, flower-child, kicking it in China, learning the art of acupuncture…

“... Do you think Eastern Medicine works?”

“Honestly?”

“Yes.”

“No.”

“Well, let me explain acupuncture to you. Nobody knows how it works. By all accounts, it shouldn’t. But, it’s five thousand years old, and people can get really good at something with five thousand years of practice, even if they don’t know what they’re doing.”

“Well, OK then.”

I gave him the same report as I’d given the doctors. Sudden shivers. Unrelenting spasms. The end of sleep.

“Did you feel a breeze when you shivered?”

“As a matter of fact, I did.”

“Oh, my gosh! We call that an ‘evil wind!’ I’ve heard of it before!”

“Have you ever seen it before?”

“Honestly?”

“Yes.”

“No.”

“Well, OK then.”

I was directed to lie down on the table. He started throwing needles into my body like little javelins. I didn’t feel any sensation.

He left the room.

I laid upon the table, pierced like Saint Sebastian. A warm feeling radiated across the surface of my skin. I could sense certain points… my temples, my ankles, my dick… they were alive with sensation.

After twenty minutes or so, he returned.

“Feel any different?”

“Not much.”

“Your arm is still twitching.”

“I know.”

“Well, I’ve never seen this before. There was no reason to think it would work. But I’d like you to come back next week.”

“OK.”

He pulled out the needles and instructed me to get dressed. Pulling on my socks, I was surprised to find a needle sticking out of my ankle.

“You missed one.”

“I did? Whoops! Just pull it out.”

I did.

I didn’t leave with optimism. The way I saw it, this was another strange remedy tried. Another oddball long-shot for my shrink to cross off his list.

The next day, the twitch slowed markedly. My arm went from convulsing once per second to once per minute. On the second day, it stopped entirely. I’ve gone seven years without an involuntary twitch.

Four days after that appointment, I called the acupuncturist to report my condition.

“It seems to have worked.”

“It did? I can’t say I expected that.”

“You didn’t?”

“I didn’t.”

“Should I come back?”

”No way! Another session might spark a relapse!”

“It might?”

“Who could say? Do you want to find out?”

“Well, OK then.”

And that was that…

[Ending pulled for revision]

Old writing.

2007-01-11T00:42:00.000-08:00

From June 2004, unearthed while doing my job. I've edited it, though it's actually half of an excellent dialogue. But I'm mostly interested in it as an artifact of my thought (and this is my self-absorbed space):

Whatever project the Bushies are on, it seems far more closely rooted to a paranoid notion of American security than to a gloriously expansionistic commitment to "the nation." Aside from the unabashedly pro-imperialist Robert Kaplan, I'm not sure that any of the neo-cons could be characterized as fitting Orwell's description of nationalists.

American actions under this administration have been persistently justified in paranoid terms of national security. The rhetoric used to articulate our policies would indicate that we don't have a systemic nationalist problem in the U.S. Though the perpetual deceitfulness of the Administration undermines the strength of their national security arguments, their absolute unwillingness to commit to meaningful military victories and the holding of territory also give the lie to any presumption of imperial ambition.

If this has all been an elaborate attempt to grab "power and prestige" then it should be judged a failure, when one considers that much of our military readiness is now trapped in the mire of Mesopotamia and America is an object of record amounts of scorn and derision throughout the world.

Having weakened our national power and our national prestige, it's really hard to think of the Bush Admin crew as anything like the militant imperialists described by Orwell.

[...]

Generally speaking, the term "neocon" applies to a group of persons who are:
a) relatively disinterested in American domestic policy
b) advocates of the univeral appeal of liberal democratism
c) committed to the ends above the means (willing to do some very illiberal and very undemocratic things in the name of liberal democratism)

The British Imperial project was interested in the exploitation of colonies, not in the construction of liberal democracies in oppressed parts of the world. From an "imperialist" perspective, the neocon agenda is self-contradictory. Part of the reason why the neocons are also such advocates of "light footprints" is that they had some dangerously naive notions of how easy it is to transform societies and no real interest in imperial rule. They're ideologues, but they're not nationalists. In one of the bizarre ironies of history, the neocons are kind of like a Fifth International, with all the ideological fervor of socialism transplanted wholesale to the hostile soil of liberalism. It's not a surprise that their projects have withered on the vine, since their indifference to method doesn't square well with their putative ideals. But their ideology is obviously as sincere as it is misguided and ineffective... and manifestly NOT "imperialism."

[...]

I find it's helpful to think of the term "clientism" as a couterpoise to "imperialism." If you're an "imperialist" you want to rule. You want them to pay you some fucking respect, and pay you some tribute. You want to control, and to have power. Think of "the White Man's Burden." Our goal was to provide the moral uplift necessary to bring our colonial subjects into the modern world. Then think of post-war Saudi Arabia. We just wanted the oil. They could hate us, and raise generations of anti-Americans in their madrassas just so long as the supply of oil was stable. The paranoid frame of mind is content with "clientism." Is Afghanistan going to be ruled by warlords no better than the Taliban? Sure, but if they keep those terrorists under control, what's the harm?

The sincere neocons are ideologues, not clientists or imperialists, but the rest of the establishment (i.e. Rumsfeld) are content to set up oppressive client regimes that will provide certain security guarantees. So, I don't think it's helpful to call them "imperialists." That just confuses terms. 19th-century British imperialism was VERY different than 20th-century American imperialism and it isn't helpful to conflate them too readily.

[...]

I dunno if you remember Omar Sharif and Sylvester Stallone dining on goat milk in Rambo 3, but the "fundies" were popularly portrayed as our allies. But, let's even stipulate that was mere propaganda. The question is, in 1984 was a ragtag band of turbaned guerillas in Central Asia really comparable in scale to the global threat of international Communism, with a conventional army of vast size and an array of ICBM's targeted at the American mainland? The Cold War was real. Yes, we did some really disgraceful things in the context of it, and many of them were tactical, strategic, and even moral errors. When Afghanistan was Soviet occupied, we really didn't think the Afghans were a threat to us. And in fact, they weren't. They were a fratricidal band of thugs. It wasn't until the Pakistani-backed Taliban swept to power, starting in 1994, that militant fundamentalism, very similar to the early militant Communism of Che Guevara-type revolutionaries began to legitimately threaten the West. Many of the revolutionaries we backed were actually quite secular (say, Rashid Dostum), though some were obviously Islamic fundamentalists (say, Ismail Khan). But even today, we back the ones on our side (both of them), whatever their approach to Islamic fundamentalism.

[...]

I disagree with this. They ARE a threat to the West. We think of Islamic fundamentalism too reductively when we worry about nothing more than attacks against Western cities. The project is to seize control of states. Especially Pakistan and Saudi Arabia. Imagine militant Sunni funadmentalist regimes with close links controlling the world's biggest oil producer and nuclear bombs.

They are a meaningful threat, but it's a threat of the long-term. But the corner we're backed into now, supporting autocratic clients against theocratic insurgents is far far from ideal.

I don't think we should have attacked Iraq, because it always seemed a poorly conceived response to our present dilemma. But it's not an entirely trivial problem. If Sunni fundamentalist insurgents enact their political visions in Pakistan and Saudi Arabia, the consequences would be...

...historical.

I don't mean to overstate the threat. But it shouldn't be diminished too. The threat is strategic. Not the mere potential loss of "some buildlings."

Fragments

2006-09-15T00:20:00.000-07:00

The first interaction between a liberal polity and its citizen is a brutally imperative question - "why do you deserve to eat?"

What a horrible introduction! When we look at the ideology's genesis myth, the assumptions are not stacked so mercilessly against the individual. The Lockean natural man exists in a realm of self-sufficiency. With the labor of his body he acquires the means of self-preservation, at least. He may build a shelter, and by so doing acquire a right of property therein. He may hunt for food, and by obtaining it acquire the right to eat. He approaches the social bargain from a position of adequacy in nature. Life in society is sensible not because it guarantees against destruction, but because it promises improvement. The man has desires which exceed his individual capacity for satisfaction. But in community with other men, by efficiently exchanging the product of one another's labor, this man can transcend the raw subsistence of the state of nature.

Perhaps it is odd that Locke then moves on to discuss the slave, rather than the child or the infirm. It should be evident that the naturally endowed "executive power" of the individual is not sufficient for even bare survival in a large class of people. But I'm a poorly read fellow, it's been a long time since I reviewed my Locke, and I can't say he never discusses it.

Whatever these historical ideals, it is hard to agree with Locke that they coherently exist in the present social world. Men and women are endowed with labor, by virtue of their bodies. But the notion that these bodies have an independent source of purpose defies the manifest evidence of our senses. Unless we've entered this vale of tears with title to a patch of ground, the human individual hasn't a choice to spurn the society of his peers. We depend upon others for our subsistence, not upon the fruit of our labor or the fruit of the ground.

In modern society, there are three ways to support oneself. One can be pitied, one can be predatory, or one can be useful. These are the three modes of survival - charity, force and utility.

Observation - charity towards the young. Cannot be a bargain. Even if the parent expects future return on investment, the child can't be considered a contractual party. The bargain is never stated, the choice never given. And the probability of repudiation would be high (the unreality of an ideal).

Observation - charity and humiliation. Life on the floor. As much as it says, starvation is rare. Beyond that, how much to note? Public housing, welfare, patrons and grifters. The norm of utility.

Observation - the predator. A vigilant state. Reduction of the malefactor. Charity as punishment (deprived of liberty, existence as a one-sided promise.)

Observation - the useful.

--------------
I want to be a liberal. I claim to be a liberal. I aspire to liberalism. But...

In contemporary American politics, the identity of liberalism has become a cramped position. In the hands of Republican polemicists the word is little more than a vacant slur. In the hands of mainstream discourse, regardless of partisan affiliation, the word is an indinstict mess applied indiscriminately to any and all left-of-center positions - including a plethora of materialist social movements that are inimical to the very idea of liberalism. A liberal willing to acknowledge the difficulty of the ideology and the history of ideas which has shaped it might seek refuge in a clarification - but one finds that the term "classical liberalism" already has libertarians squatting in it, defecating upon its principles like a cholera-infested camp of hoboes. One hears word that liberalism retains an identity in the larger world - though if this be truth, the evidence suggests it's a tarnished one.

So there isn't much to be said for my self-definition. The language available to utter it distorts my identity beyond recognition. And yet, I have long insisted upon it. I have often been a political fanatic, raging in zealous solitude.

I want to destroy my belief. My belief in liberalism hardly exists outside my private language. I do not hope to surrender it. But I lack conviction, and I see no path to sincerity but destruction of the beliefs to which I cling. I want to believe in spite.

Reading Note: Gore Vidal's Burr

2006-09-15T00:00:00.000-07:00

For preservation's sake, below are reading notes - the introductory salvo for a dialogue which never occurred.
---------------
What are we to make of this novel? This work of "historical" "fiction", two terms who rest so uneasily together that I can't even fit them into the same set of quotation marks? What does this book mean? What does it say? Does the one overlap with the other? Is truth stranger than fiction? Is fiction a stranger to truth?

Personally, I'm inclined to read Burr first and foremost as a novel. In it's opening passage, the book presents us not with itself, as a book, but with a historical document, a purported excerpt from the pages of the New York Evening Post written in the salacious tone of the gossip pages. A wealth of factual information economically relayed, with suggestive parentheticals bulging out of nearly every sentence. It sets the mood, bringing us into the randy world of broadside broadsheets that has always marked the nation's celebrity/political discourse.

But this newsprint curtain lifts just after the turning of the page, and our narrator steps forth, inviting us past the foyer of caricatures and cartoons, and into the world of fleshly people. We're not sitting on a streetcorner in New York reading the scandal sheet. We're sitting under the eaves of the Jumel family manse, with "all that aged flesh commingled" just above our heads.

We meet Charlie Schuyler, the cynical poet with the witty pen, the smutty mind, and the sharp eye who is going to introduce us to Aaron Burr, the man he is paid to serve and is paid to destroy. We are here to observe Aaron Burr, but through frosted glass, as Gore Vidal channels Charlie Schuyler channeling Aaron Burr. Can we trust Aaron Burr's narrative of himself? Can we trust Charlie Schuyler's narrative of Aaron Burr? Can we trust Gore Vidal's narrative of Charlie Schuyler? What are they here to tell us? Are they even here to tell us of themselves, or do they speak to something larger?

The America of Burr strikes me as a marvellous accident of arrogance, venality, and incompetence. Every founding father is marred by a flaw, a faultline running across their dignified exterior and penetrating deeply into the fundamental core of the statesman or general. Washington is an unsightly figure with "the hips, buttocks, and bosom of a woman", "no experience of modern warfare," an "expression...grave, but somewhat vacant." Washington, the man, despite these indignities is propelled to power on the force of back-handed virtues. Despite his incompetence, "at least he looked like a general." "it was his genius always to look the part he was called upon to play." Even in victory, Washington remains a failure. At Monmouth Courthouse, "the plan to interecept them had entirely failed; and we sustained heavy casualties for nothing."

Jefferson is cowardly, promiscuous, and vain. "it was Jefferson who was the heretic, and Montesquieu the true believer in democracy." (p. 158) "It was a passionate form of self-delusion that rendered Jefferson as president and as man (not to mention as writer of tangled sentences and lunatic metaphors) confusing even to his admirers." (160) "he seldom deviated from an opportunistic course, calculated to bring him power." (202) "Jefferson's behavior was like that of a woman who has decided to destroy the man - or rather the men... - who spurned her." (359)

The political genius is one of appearance rather than substance. Hamilton, the bastard nobility, "realized better than anyone that the world - our American world at least - loves a canting hypocrite." (p. 270) Hamilton "realized from the beginning that only through politics could he make the United States the sort of aristocratic pond in which he would most like to swim and glitter." (149) On pg. 54 Burr suggests the presence of a flaw, wondering if Hamilton "saw the flaw in me as I saw the one in him?" But what that flaw might be remains opaque. Burr "alone had the means and talent to be what [Hamilton] most wanted to be, the president." "He was envious, I was not."

By way of contrast, Burr was a man of substance, nearly propelled to his proper height, but somehow denied the prize. "Of all the new republic's political leaders, I was the most reluctant." (p. 149) Burr's successes and failures are endowed with a strange passivity. On p. 53, "I hurled Hamilton from the mountain-side, and myself fell." His "political career began, properly" through the pressures of Geroge Clinton. "He offered me the attorney-generalship of the state, a position I did not want. But pressure was brought to bear on me." (p. 150) Upon the election of 1800, Burr solemnly declares "let it be said once and for all, I would have refused the presidency on the practical ground (putting aside honour like a Virginian) that it was plainly the sense of the people of the United States that Jefferson be the president" (224). In their infamous duel, Burr places his trust in fate. "Hamilton fired first." (269) "I could do nothing but what I did. Aim to kill, and kill." (270) On the decision to invade Mexico, Burr reveals "I was sketpical. Jamie overrode me." (281)

His failures are always conveniently crafted by the flaws of those who surround him. In the battle of Quebec, "had the men followed me and met with Arnold's troops... Canada would today be a part of the United States." (50) But of course, "due to the untimely death of Montgomery, the cowardice of Campbell, the defection of Enos, we failed." (50) "It should be noted that my plan to harass Staten Island was finally accepted by Washington, who entrusted the task to our drunken general, the Scots peer Lord Stirling. Not knowing the terrain, he failed." (89) At Monmouth Courthouse, "I gave the order for attack... but fate interevened.... we lost, fatally, the initiative, thanks to Lee's abrupt withdrawal and to Washington's refusal to do more than make a perfunctory feint at the British position." (95)

As he ages, it is not his common sense confounded by the foolishness of his superiors, but his virtue confounded by the venality of his competitors. Of the duel, "I did not realize with what cunning Hamilton had prepared his departure from this world, and my ruin." (266) Of the election, "I made no move to gain the presidence. I behaved honourably and, as Theodosia foretold, I have regretted it all my life." (226) His plot, "I ought to have been more suspicous of Jamie than I was. But I could not, simply, take him seriously. No one could. That is how he came to deceive Washington, Hamilton and me, not to mention any number of other Spanish and American potentates, military and civilian." (281)

And yet, in spite of all his sweet demurral, Burr is a relentless opportunist. He crafts deceitful opportunity at the slightest convenience. He marries Jumel to finance his plot against Mexico, plays Federalists against Republicans, mocks, scorns, deceives, and manipulates. Burr MAKES his world, but in the doing of it, not in the narration. Elevating illegitimate children to the highest posts of power, bringing himself within grasping distance of empire and power. He tells us a story with remarkable bluntness and candor, offering forthrightly the stories of dalliances and escapades... opinions of historical figures unvarnished with condescension to "official" mythology. Burr hides in plain sight, like any true magician, drawing our eyes to the color while pulling away the source of his true motives. Even the novel itself culminates in the sudden drawing of the rabbit out of the hat, a proof that all Burr's force is, at root, motive.

Vidal chooses to open his afterword with a dubious claim against "traditional" history, which is evidence of ignorance or disingenousness, claiming that he's reserved "the right not only to rearrange events but, most important, to attribute motive - something the conscientous historian or biographers ought never do." (429) Leaving aside the falseness of this charge against history, this claim is highly dubious. Burr is presented, in his own words. But are those words meant to be seen as truth? Burr renders a narrative of staggering accomplishment propelled by incredible passivity. Schuyler's own life, his cynical manipulation of his connection to Burr and the import of that relationship for contemporary politics, similarly portrays himself as a hapless pawn who coincidentally but opportunistically brings in the bacon. And Vidal too drapes his narrative in the pacifying net of "history" to obscure his motive, his larger claim against America... his POLITICAL charge, disguised as historical fact.

I think this is a fascinating novel. I think Schuyler is a fascinating character. I suspect I see Vidal's motives, and at last I think I perceive Vidal the Polemicist, lurking below the pages of Vidal the Novelist.

A list of tales

2006-09-14T23:44:00.000-07:00

Exodus (Old Testament)
Survivial in Auschwitz (Primo Levi)
Crime and Punishment (Fyodor Dostoevsky)
Democracy in America (Alexis de Tocqueville)
The Brothers Karamazov (Fyodor Dostoevsky)
The Divine Comedy (Dante Alighieri)
The Aeneid (Virgil)
Paradise Lost (John Milton)
Tractatus Logico-Philosophicus (Ludwig Wittgenstein)
The Four Voyages (Christopher Columbus)
Metamorphoses (Ovid)
Guillver's Travels (Jonathan Swift)
The Republic (Plato)
Autobiography (John Stuart Mill)
Alice's Adventures in Wonderland (Lewis Carroll)
Ulysses (James Joyce)
The Blazing World (Margaret Cavendish)
Oliver Twist (Charles Dickens)
The Travels of Sir John Mandeville (Anonymous)
The Painted Bird (Jerzy Kosinski)
Heart of Darkness (Joseph Conrad)
Invisible Cities (Italo Calvino)
The Adventures of Huckleberry Finn (Mark Twain)
The Odyssey (Homer)
The Gospels (New Testament)

More magical thinking.

2006-09-13T01:47:00.000-07:00

Postulate: Comprehension is blasphemy.

The success of philosophy is not measured by the ground which is covered, but by the stasis obtained at its outer limit. We think to optimize our ignorance.

The ethical dilemma: How should I act?

The political dilemma: How should we act?

The legal dilemma: How should you act?

If the sociopath is the diseased doing, then must not the ontopath be the diseased being?

I'm likely to return. These anguished musings are doubtlessly misleading. But sooner or later, I must surely find the words to entrap Mephistopheles. Until then, be well.

Apologies

2006-09-13T00:40:00.000-07:00

I'm in a state of cognitive ferment. I make these notes available because they may be of interest and you may be of assistance. But they are the product of an agonizing process. I'm trying to make sense of something, but I haven't a clue as to what it is. These words are more like a spell than a treatise - talismanic chants aspiring to conjure up my demon and give it a shape I can comprehend.

We've been discussing evil, motive and law. Let's take a step back for a moment.

A moral proposition declares its object wrong or right.

A legal proposition adds a "therefore" clause.

"It is wrong to kill therefore killers shall be punished."

"It is right to apprehend killers therefore informants shall be rewarded."

So we might be able to make the case that a moral statement isn't an "ought" at all. To state a moral proposition is to declare what is. Only its legal implication prescribes an ought.

If we assume that moral propositions are realities in themselves this would go some distance to explain the tension between morality and reason. If the real and the rational are perpetually estranged from one another then morality as descriptor is opposed to reason.

But is a moral descriptor a fundamentally different proposition than a perceptive descriptor? We can argue until dawn whether the sky is actually blue. But the heavens will ultimately serve as evidence to support one proposition or the other. Misleading as the evidentiary appeal may be (why don't we consider the sky black?), moral propositions lack even such grounds for support. We can conduct a million abortions each year, no amount of repetition will bolster or denigrate the position that such actions are a moral wrong.

This may also explain why intution plays such a strong role in moral debate. If we are arguing the color of the sky, my perception will clearly indicate that it is black. Nevertheless, you may convince me that as a categorical statement, "the sky is blue" is true, despite its contradiction of my nighttime perceptions. Similarly, I may be brought to concede that a moral proposition is true despite its inconsistency with my moral perceptions. Moral propositions may be impervious to empirical validation, that doesn't mean they're impervious to rational critique.

But how can moral propositions be descriptive of reality if their referent enjoys no physical existence? How many other descriptoins can meet such a demanding standard? "San Francisco is 350 miles away." That is true for me. It's not true for you. It may not be true for me tomorrow. The truth of the statement is contingent upon the precision of its articulation and the context of its apprehension.

New Post

2006-09-13T00:15:00.000-07:00

To resume the discussion from the post immediately below (technical difficulties):

The law defines as a crime as the commission of a prohibited act (actus reus) with a culpable mental state (mens rea). The Model Penal Code identifies four relevant mental states - purpose, knowledge, recklessness, and neglect. Any legislative definition of a crime should state with specificity which degree of culpable mental states are required to render the prohibited act criminal. There are some rules of construction for determining relevant mental states when the legislative text is silent. A special category of legal wrongs - termed "violations" - are ascribed without reference to any mental state. There's some great potential for mischief in that category, but that's discussion for another time.

It's a commonplace among lawyers that "motive is often confused with intent" by lay people. Motive is not used by the law to determine criminality - rather, it is offered as evidence to establish the existence of a culpable mental state. If I stand to inherit $20 million upon your death, that fact supports the inference that I purposely caused your death. My motive of self-enrichment reinforces the conclusion that I intended to murder. If I shot my best friend under the overpass, my lack of motive may support the inference that I neglectfully caused his death.

Once this legal distinction has been grasped, lawyers are free to snicker at the moral simpletons who ascribe moral value directly to motives. You may find it more abominable that a killer murdered to gratify abnormal sexual lust than that another murdered to acquire financial gain. But the lawyer would reduce both motives to identical significance - they establish that the actions were intended to kill and thus place both murderers in the same category of culpability.

Of course, the law often retains the same categories it licenses its practitioners to demean. Motive does acquire legal significance within the context of "justification and excuse" - moral calculations that are performed subsequent to the determination of criminal guilt. Under the law you may have purposely killed your wife's lover, but your motive of blind rage may yet exonerate you. You may have intended the death of the mugger, but your motive of self-defense may justify it. Your motive doesn't abolish the criminality of your act, but may excuse or justify it.

The archaic category "abandoned and malignant heart" does represent a normative judgment on the moral value of motives. Those who ascribe to the ALI's schema of culpability treat this description as a quaint relic, a laughable expression of the conceptual chaos which bedevilled earlier schemes of criminal law. The mockery is inappropriate, because it does submerge the very real moral gap lying between the law as it was and the law as it seeks to be (and to be fair, many state legal systems have been resistant to many of the proposals of the Model Penal).

But the law seldom claims to be co-extensive with morality. The law requires adherence to its precepts. It allows moral disagreement with those precepts. The impossibility of moral consensus makes law necessary - no action is so abhorrent that no person would do it. If any action were so abhorrent, no law would be required to prohibit it, since there would be no danger of such a crime's commission.

So, as a person struggling with American law, I perhaps have two issues. The first is what the moral value of motive properly should be. The second is what the legal value of motive should be. Morally, we do have intutions about which motives are noble, which are execrable, and how they may be meaningfully compared to one another. But the law can't deal with mere intuitions. It seeks to give form to those intuitions so that legal standards can be navigated even by those who are morally estranged from the legal system's foundations.

It seems an easy case that laying out an anticipatory scheme of motives would be more difficult than laying out a coherent scheme of intentions. But the difficulty of articulating a taxonomy of motives may be a simple function of the present absence of such a taxonomy. Nothing in the ALI's scheme of intention is self-evident, and the manner of its articulation is clearly the product of intensive reflection. Presumably similar attention could be paid to the issue of motive, leading to articulation of a "system of motive" equally comprehensive and general to the that of intention.

But does one want a legal system tailored to judge the evil of subjectivities? Is that even a good idea? Might it be a necessary one?

Evil Notes

2006-09-12T21:50:00.000-07:00

I've been reading Evil in Modern Thought by Susan Neiman.

Some categories, as defined by Neiman:

Natural Evil - when bad things happen to people. Earthquakes, fires, floods and plagues.
Moral Evil - when people do bad things. Crime, abuse, neglect.
Metaphysical Evil - The gap between the world as it is and the world as it ought to be. The ways in which reality systematically fails to conform to rational values.

In Neiman's account, the Englightenment begins with the human attempt to reconcile the Lisbon earthquake with faith in a benevolent reality. To do her subtle argument great violence, let's say that the Lisbon leads to rejection of the category "natural evil." Destruction wrought by the random and indifferent forces of nature was cabined off from discussion of evil. Human technology could forestall some evils, and with time would ward off more. If contingency should overwhelm our precautions, if nature should cause destruction which we were capable of warding off, then there would be a political question to be resolved, not a metaphysical one. Katrina reveals that governments should build strong levees, draft reasonable evacuation plans, and mobilize strong relief efforts - not that the universe is fundamentally disordered by inflicting suffering upon the innocent.

It's a good book, a great discussion, I recommend it highly. And now I'd like to ignore it completely. Or, to put it another way - I'd like to proceed with some thoughts. Please consider my debt acknowledged in general for I may fail to notice it in the particular, and in no case does a statement necessarily reflect one made by or amenable to Neiman.

-------------------------

An evil outcome. "That should not have happened to you."

An evil action. "You should not have done that."

An evil essence. "That is not how things should be."

How is evil recognized? Is there an a priori definition of what constitutes an evil?

There isn't. Hence the seduction of relativism. The definition of "evil" relies upon intuitive labels. The state murders its citizens if it determines them guilty of crime. I may consider this justice. You may consider it an abomination. In all likelihood, we reach our initial stance on this issue intuitively. There may be moral propositions which attract a high degree of consensus - "Jews should not be wiped off the face of the earth." But, sadly, I can think of no moral proposition so outre that it has no proponents. And I'm sure if we found such a proposition, its identification alone would cause supporters to gravitate towards it.

None of this is to say that moral propositions can only be considered through intuition. Just because a moral proposition is formulated intuitively, does not mean it is determined by intuition. Moral argument is possible. But it can be very difficult.

Moral persuasion requires justification by alien standards. Moral tolerance requires irresolute moral predicates.

It is often argued that evils cannot be quantified. Toting up body counts or assigning utility values to human suffering and drawing assessments that "this is more evil than that" cannot be done. Such an outlook requires adoption of a moral predicate itself. Obviously it can be done, and is in fact done by folks of a utilitarian bent. In high school I remember encountering a philosophy textbook that refuted the utilitarian argument in something like the following terms:

Imagine a "torture show," in which an individual was subjected to physical torture for the pleasure of a large viewing audience. The small gain in pleasure experienced by millions of viewers may exceed the great loss in pleasure suffered by the victim of torture. But not even utilitarians defend such a scenario.

That was back in the days before Fear Factor. I consider it a "textbook" example (pardon the pun) against resorting to the indefensible imaginary. It is difficult to imagine any behavior which humans have not or will not engage in. It is impossible to imagine any which some will not defend.

These are notes, not a thesis... so some fragments:

What is suffering? Incomplete destruction.
Are aesthetics and morals flip sides of the same coin? Is an aesthetic failure an act of flawed creation while moral failure is an act of flawed destruction?
If evil is defined in terms of destructions - lives, joys, objects which should not have been destroyed - is every moral proposition a theodicy of the status quo?
Intent - the desire to create an outcome. Motive - the desire to obtain an outcome. Culpability - a legal term of art expressing a variable mental state relative to a given act.

Let's elaborate upon that last one for a moment. This distinction has been tormenting me lately, but every time I seem to seize hold of it, it evaporates in my hands.

The law defines as a crime as the commission of a prohibited act (actus reus) with a culpable mental state (mens rea). The Model Penal Code identifies four relevant mental states - purpose, knowledge, recklessness, and neglect. Any legislative definition of a crime should state with specificity which degree of culpable mental states are required to render the prohibited act criminal. There are some rules of construction for determining relevant mental states when the legislative text is silent. A special category of legal wrongs - termed "violations" - are ascribed without reference to any mental state. There's some great potential for mischief in that category, but that's discussion for another time.

It's a commonplace among lawyers that "motive is often confused with intent" by lay people. Motive is not used by the law to determine criminality - rather, it is offered as evidence to establish the existence of a culpable mental state. If I stand to inherit $20 million upon your death, that fact supports the inference that I purposely caused your death. My motive of self-enrichment reinforces the conclusion that I intended to murder. If I shot my best friend under the overpass, my lack of motive may support the inference that I neglectfully caused his death.

Once this legal distinction has been grasped, lawyers are free to snicker at the moral simpletons who ascribe moral value directly to motives. You may find it more abominable that a killer murdered to gratify abnormal sexual lust than that another murdered to acquire financial gain. But the lawyer would reduce both motives to identical significance - they establish that the actions were intended to kill and thus place both murderers in the same category of culpability.

Of course, the law often retains the same categories it licenses its practitioners to demean. Motive does acquire legal significance within the context of "justification and excuse" - moral calculations that are performed subsequent to the determination of criminal guilt. Under the law you may have purposely killed your wife's lover, but your motive of blind rage may yet exonerate you. You may have intended the death of the mugger, but your motive of self-defense may justify it. Your motive doesn't abolish the criminality of your act, but may excuse or justify it.

Some Thoughts

2006-09-12T00:18:00.000-07:00

Dramatis Personae:
A man.
A gun.
A bullet.
Another.
A deus.
A machina.

[ANOTHER is standing stage right. MACHINA is standing recessed stage center. DEUS is standing inside MACHINA. ENTER MAN stage left, accompanied by GUN and BULLET. MAN is thinking about his mother.]

GUN: bang.
BULLET: whizz.
ANOTHER: Aaack! I've been shot!
MAN: Did I hear something?

[ANOTHER dies. DEUS exits MACHINA. ANOTHER lives again. DEUS enters MACHINA. MAN exits stage left, accompanied by GUN and BULLET.]

ANOTHER: That was a close call.

[ENTER MAN stage left, accompanied by GUN and BULLET. MAN is thinking he'd like to kill ANOTHER.]

GUN: bang.
BULLET: whizz.
ANOTHER: Aaack! I've been shot!
MAN: You had it coming, you bastard.

[ANOTHER dies. DEUS exits MACHINA. ANOTHER lives again. DEUS enters MACHINA. MAN exits stage left, accompanied by GUN and BULLET.]

ANOTHER: That was a close call.

[ENTER MAN stage left, accompanied by GUN and BULLET. MAN is thoughtless.]

GUN: bang.
BULLET: whizz.
ANOTHER: Aaack! I've been shot!
MAN: Gracious! How careless of me!

[ANOTHER dies. DEUS exits MACHINA. ANOTHER lives again. DEUS enters MACHINA. MAN exits stage left, accompanied by GUN and BULLET.]

ANOTHER: That was a close call.

[ENTER MAN stage left, accompanied by GUN and BULLET. MAN is out of mind.]

GUN: bang.
BULLET: whizz.
ANOTHER: Aaack! I've been shot!
MAN: Both notes rather flat.

[ANOTHER dies. DEUS exits MACHINA. ANOTHER lives again. DEUS enters MACHINA. MAN exits stage left, accompanied by GUN and BULLET.]

ANOTHER: That was a close call.

[ENTER MAN stage left, accompanied by GUN and BULLET. MAN is bent on vengeance.]

GUN: bang.
BULLET: whizz.
ANOTHER: Aaack! I've been nearly shot!
MAN: Drat!

[MAN exits stage left, accompanied by GUN and BULLET.]

ANOTHER: That was a close call.

[ENTER MAN stage left, accompanied by GUN and BULLET. MAN is troubled by doubt.]

GUN: bang.
BULLET: whizz.
ANOTHER: Aaack! You've been shot!
MAN: Yup.

[MAN dies. DEUS exits MACHINA. MAN lives again. DEUS enters MACHINA. MAN exits stage left, accompanied by GUN and BULLET.]

[ENTER MAN stage left, accompanied by GUN and BULLET. MAN rebels against the cosmos.]

GUN: bang.
BULLET: whizz.
MACHINA: Aaack! I've been shot!
MAN: To kill the God, you must break the machine.
ANOTHER: Hey! I was content.

[MACHINA dies. DEUS exits MACHINA, looks around nervously. MAN exits stage left, accompanied by GUN and BULLET.]

DEUS: That was a close call.

[Curtain falls.]

Working towards a deterrence formula.

2006-04-17T20:36:00.000-07:00

Similar disclaimer to the prior post - I take none of the following seriously, and do not believe you should either.

OK. So this is what I get.

First. The cost of not getting sued is equal to:

((Probability of not having an accident) * (Probability of no fraudulent suit)
PLUS
(Probability of having an accident) * (Probability of no victim suit))
TIMES
Cost of the Precaution.

Then, in each of the four lawsuit states (accident + suit + verdict; accident + suit + acquittal; no accident + suit + verdict; no accident + suit + acquittal) you add the cost of the burden.

So the formula is going to include 4B.

In both verdict states, the total cost is equal to the maximum cost of liability + the maximum cost of litigation.

So, the formula is going to include 2(L_max + S_max)

Also, each acquittal state is going to equal the maximum cost of litigation. So, that's 2(S_max)

2(L_max + S_max) gets multiplied by the probablity of an accident + the probability of getting sued by a victim TIMES the probability of not having an accident + the probability of getting sued by a fraud.

The same can be said for 2(S_max).

OK. So we can narrow the number of variables.

Let v be the probability of getting sued by an honest victim.

Let f be the probability of getting suted by a fraud.

Let a be the probability of an accident.

Let j be the probability of a just verdict (you lose because you hurt the guy)

Let i be the probability of an unjust verdict (you lose despite causing no harm)

Let B be the cost of a burden.

Let S be the maximum cost of a litigation.

And let L be the maximum cost of potential liability.

2 * ( L + S ) * ( avj + ( fi - afi ) )
PLUS
2S (( av - avj ) + ( f - fa - fi + fai )
PLUS
4B
PLUS
B * ( ( 1 - a - f + af ) + ( ( a - av ) )

My head hurts, and I think I messed something up in here.

Let's check it.

Total Cost = (2 * ( L + S ) * ( avj + ( fi - afi ) )) + (2S (( av - avj ) + ( f - fa - fi + fai )) + 4B + (B * ( ( 1 - a - f + af ) + ( ( a - av ) ))

I'm such a dumbass. I know how to use Excel.

Reformulating Learned Hand

2006-04-17T17:30:00.000-07:00

I'd appreciate it if the following post were treated as a joke. If I ever act like I meant it... may great violence fall upon me.

OK. I think the Learned Hand formula is officially driving me nuts. To put this into context for any non-lawyer who happens across this site, here's what the Learned Hand Formula is: B < pL

B stands for the cost of a Burden. P stands for the probability of an accident. And L stands for the damage an actor will be liable for if the accident should occur. Lawyers bandy about this "formula" to try and determine how deterrence should operate in the tort system. First of all, I have trouble considering this a formula at all... or rather, as a formula, its result is always simply "true" or "false." That doesn't actually tell you anything.

But worse - once you start debating policy issues within the framework of the Learned Hand formula, you start spouting gibberish. Take, for a quick example, the question of strict liability. Strict liability is said to be an appropriate standard when you want an actor to bear the full costs of all accidents inflicted. No matter what the actor could or should have done - say, putting banisters on the staircase - the actor will pay the cost of the accident - say, the tenant falling four floors. This is said to increase deterrence... despite the fact that it does nothing to influence any of the factors. L is still the same, whether the guard rails are in place or not. B - the cost of bannisters - is still the same. And p - the probability of a person falling off the stairs remains dependent upon the actor's choice to put in a bannister or not. So what has the policymaker done?

Simple, he's increased the probability of the actor losing at trial. So, in truth we're discussing more than one p in our B < pL. P₁ = the probability of an accident. P₂ = the probability of a loss at trial. In fact, there's yet another probability hiding in this equation - the probability that a victim will bring a suit at all. In the case of a tenant falling off a bannister with no guard rails that probability (call it P₃) will be quite high. However, in other classes of cases - medical malpractice, say - that probability will in fact be quite low.

But we're not done yet. There are other probabilities lurking in this system. What is the likelihood of getting sued even when no injury occurs? What's the likelihood of losing at trial in such a case? And what's the right figure to use when you're calculating damages? The maximum liability you might incur? The average?

Anyhow, I hate thinking this way. For starters, because it leads to conditions like this:

I'd like to walk through a sample model of tort anticipation using my embarrasingly inadequate conception of game theory, and see what I come up with.

Step 1: The actor (let's say he's a doctor) must make a choice between one of two burdens. Let's say that B₁ is the cost (burden) of splinter-free tongue depressants. Let's say that B₂ is the cost of the alternative - plasterwood tongue depressants.
Step 2: Now, for either choice there will be a probability that an accident will occur. We can call these P₁(a) and P₂(a). There are also corresponding likelihoods that there won't be accidents: (1 - P₁(a)) and (1 - P₂(a)).
Step 3: Depending on whether not an accident occurs, there is a likelihood of being sued. There would be four relevant probabilities at this stage. A) Having chosen B₁ and an accident having occurred, the likelihood of getting sued is P_a(s); B) Having chosen B₁ and an accident having not occurred, the likelihood of getting sued is P_b(s); C) Having chosen B₂ and an accident having occurred, the likelihood of getting sued is P_c(s); and D) Having chosen B₂ and an accident having not occurred, the likelihood of getting sued is P_d(s). Again, there are at this stage corresponding likelihoods of not getting sued.
Step 4: OK. Now we're getting to a wide range of outcomes. At this point, we face that probability that, if sued, our hapless doctor will either win or lose. This breaks down into 8 potential outcomes: A) choosing B₁ and having had an accident and having been sued; B) choosing B₁ and having had an accident and having not been sued; C) choosing B₁ and not having had an accident and having been sued; D) choosing B₁ and not having had an accident and not having been sued; E) choosing B₂ and having had an accident and having been sued; F) choosing B₂ and having had an accident and not having been sued; G) choosing B₂ and not having had an accident and having been sued; H) choosing B₂ and not having had an accident and not having been sued. Because winning or losing are only relevant within the context of having been sued, we get two possible outcomes for each state of being sued and only one outcome for each state of not being sued - or 12, rather than 16 outcomes.
Step 5: And now, only at the end of this long mess do we reach the relevant damage assessment - liability + litigation costs. Both of these factors don't arrive at our desk in some determinate form. Instead, they come in a range - anywhere from zero + zero (no liability, and the plaintiff gets his with a Rule 11(b) sanction covering attorney costs) to huge + huge (massive economic damages to the plaintiff, huge pain and suffering losses, a punitive award, and a protracted costly trial). Ironically, the number you'll want to use at this stage will depend upon the decision strategy you were trying to use way back at Step 1. If you're pursuing a min-max strategy (minimizing your maximum loss) then you want to use the largest possible figure (though, one could also calculate the likelihood of being assessed the maximum level of liability... roughly 2% of plaintiffs receive over 60% of non-economic damages, for example... and those defendants are far more likely to have been deemed especially culpable for having picked the wrong B). For the moment, we'll just say that's the strategy, and thus at this stage, our relevant figures would be L_max (the maximum potential liability) and S_max (the maximum potential litigation cost). At certain stages of the decision tree, the liability and/or the litigation costs will be zero (because no suit was filed or no damages were awarded).

So, let's start filling in some arbitrary figures and see what we get. Let's try this arbitrary assignment:
B₁ = $1,000
B₂ = $10

P₁(a) = 0.1 (took the precaution, accident occurred anyhow)
P₂(a) = 0.8 (didn't take precaution, accident occurred)

P_a(s) = 0.3 (took precaution, accident occurred, got sued)
P_b(s) = 0.1 (took precation, no accident, got sued)
P_c(s) = 0.6 (didn't take precaution, accident occurred, got sued)
P_d(s) = 0.2 (didn't take precaution, no accident, got sued)

P_a(v) = 0.6 (took precaution, accident occurred, got sued, loses)
P_b(v) = 0.0 (took precaution, accident occurred, no suit, can't lose)
P_c(v) = 0.3 (took precaution, no accident, got sued, loses)
P_d(v) = 0.0 (took precaution, no accident, no suit (can't lose))
P_e(v) = 0.9 (no precaution, accident, lawsuit, loses)
P_f(v) = 0.0 (no precaution, accident, no lawsuit)
P_g(v) = 0.5 (no precaution, no accident, lawsuit, loses)
P_h(v) = 0.0 (no precaution, no accident, no lawsuit (can't lose))

L_max = $10,000,000
S_max = $1,000,000
L_min = $0
S_min = $0

Now, we end up with 12 possible endstates:

B₁ + (P₁(a) * P_a(s) * P_a(v) ( L_max + S_max ) ) = $1,000 + (0.1 * 0.3 * 0.6 ($10,000,000 + $1,000,000) = $1,000 + 0.018($11,000,000) = $1,000 + $198,000 = $199,000 - Precaution, accident, lawsuit, verdict
B₁ + (P₁(a) * P_a(s) * (1 - P_a(v)) ( L_min + S_max ) ) = $1,000 + (0.1 * 0.3 * 0.4 ($0 + $1,000,000) = $1,000 + 0.012($1,000,000) = $1,000 + $12,000 = $13,000 - Precaution, accident, lawsuit, acquittal
B₁ + (P₁(a) * (1 - P_a(s)) * P_b(v) ( L_max + S_max ) ) = $1,000 + (0.1 * 0.7 * 0.0 ($0 + $0) = $1,000 + 0.00($0) = $1,000 + $0 = $1,000 - Precaution, accident, no suit
B₁ + ((1 - P₁(a)) * P_b(s) * P_c(v) ( L_max + S_max ) ) = $1,000 + (0.9 * 0.1 * 0.3 ($10,000,000 + $1,000,000) = $1,000 + 0.027($11,000,000) = $1,000 + $297,000 = $298,000 - Precaution, no accident, lawsuit, verdict
B₁ + ((1 - P₁(a)) * P_b(s) * (1 - P_c(v)) ( L_min + S_max ) ) = $1,000 + (0.9 * 0.1 * 0.7 ($0 + $1,000,000) = $1,000 + 0.063($1,000,000) = $1,000 + $63,000 = $64,000 - Precaution, no accident, lawsuit, acquittal
B₁ + ((1 - P₁(a)) * (1 - P_b(s)) * P_d(v) ( L_min + S_min ) ) = $1,000 + (0.9 * 0.9 * 0.0 ($0 + $0) = $1,000 + 0.0($0) = $1,000 + $0 = $1,000 - Precaution, no accident, no suit
B₂ + (P₂(a) * P_c(s) * P_e(v) ( L_max + S_max ) ) = $10 + (0.8 * 0.6 * 0.9 ($10,000,000 + $1,000,000) = $10 + 0.432($11,000,000) = $10 + $4,752,000 = $4,752,010 - No Precaution, accident, lawsuit, verdict
B₂ + (P₂(a) * P_c(s) * (1 - P_e(v)) ( L_min + S_max ) ) = $10 + (0.8 * 0.6 * 0.1 ($0 + $1,000,000) = $10 + 0.048($1,000,000) = $10 + $48,000 = $48,010 - No Precaution, accident, lawsuit, acquittal
B₂ + (P₂(a) * (1 - P_c(s)) * P_f(v) ( L_max + S_max ) ) = $10 + (0.8 * 0.4 * 0.0 ($0 + $0) = $10 + 0.00($0) = $10 + $0 = $10 - No Precaution, accident, no suit
B₂ + ((1 - P₂(a)) * P_d(s) * P_g(v) ( L_max + S_max ) ) = $10 + (0.2 * 0.2 * 0.5 ($10,000,000 + $1,000,000) = $10 + 0.02($11,000,000) = $10 + $222,000 = $222,010 - No Precaution, no accident, lawsuit, verdict
B₂ + ((1 - P₂(a)) * P_d(s) * (1 - P_g(v)) ( L_min + S_max ) ) = $10 + (0.2 * 0.2 * 0.5 ($0 + $1,000,000) = $10 + 0.02($1,000,000) = $10 + $20,000 = $20,010 - No Precaution, no accident, lawsuit, acquittal
B₂ + ((1 - P₂(a)) * (1 - P_d(s)) * P_h(v) ( L_min + S_min ) ) = $10 + (0.2 * 0.8 * 0.0 ($0 + $0) = $10 + 0.0($0) = $10 + $0 = $10 - No Precaution, no accident, no suit

OK now. See, this is helping me?

Now that I can see what's going on here visually, I see what's up. At the end of all this math, we wind up back at two states. Either you get sued, or you don't. If you don't get sued, your burden is the total cost of the preventive measure. If you do get sued, your burden is the total cost of the various "getting sued" outcome states.

So, for example - under B₁ there are four possible positive lawsuit endstates with an aggregate probability of 0.120, or a 12% chance of happening. Under B₂ there are also four possible positive lawsuit endstates, with an aggregate probability of 0.520, or a 52% chance of getting sued.

Now this is intriguing. If you choose B₂ your worst outcome is VERY BAD. You have a 43.2% likelihood of losing $11 million - so, by discounting for probability you wind up taking a $4.75 million hit when you choose the plasterwood tongue depressants.

Oddly, however... if you choose B₁, the system cost becomes your greatest liability. Your worst outcome has now become adopting the safety measure, getting sued, and losing. Ironically, it's less costly for the "bad doctor" to get sued and acquitted than it is for you.

So, it would stand to reason that the more deterrent you have, the more wastage you'll get... hmmm.

I think I want to think about this some more. Sorry if I've wasted your time.

Wait, wait, wait.

OK. So from a policy persepctive then... strict liability basically bumps the probabilities up to one if there was an accident and you were sued whether or not you took the precaution. So it would substantially and equally increase the cost of states #1 and #7. Which means, there would be no focused gain in deterrence, since the consequence falls equally upon both folks. It would raise the aggregate costs of the entire system, though with the burden continuing to fall most heavily on the person failing to take precautions... all other things being equal.

However, to focus deterrence incentives, you would want to increase the probabilities of suit or verdict under scenarios 7-12 or decrease the probablities of suit or verdict under scenarios 1-6.

Anything else, you're just running in place - marginally, but inefficiently increasing deterrence by raising the absolutecost to all actors in the system.

Old news

2005-10-30T01:25:00.000-08:00

From 12/05/04:
Today, I read. I finished God Knows by Joseph Heller, then re-read the books of Samuel (and the first portion of Kings). By 6:30 PM I had finished, and was famished. My apartment by now was frigid, though the heat had just turned on - just as the dawn is the coldest hour of the day, so the hour the heat kicks in is typically the coldest hour in my apartment. I decided to head into Berkeley to forage for food.

On the way to the BART, I picked up the New York Review of Books, reading it at the station and upon the train - slogging through a tedious review of portraiture by John Updike (they say he once had talent). Why is every portrait of an ugly man assumed to be the target of a portraitist's cunning scorn?

Anyhow, a blind man was also on the train. As the train left Ashby, I arose from my seat and went to stand in front of the door. The blind man also got up and spoke to nobody in particular just as the train was sliding into the station:

"Is this Berkeley? What stop's coming up?"

I was nearest, so I leaned in to him and said, "This is Berkeley. We've reached the Berkeley station."

The doors were open. He turned to me and asked, "Can you help me find my way out of the station?"

"Sure, I'd be happy to do that."

I folded my paper beneath my left arm, and took his left hand and folded it into the crook of my right arm. In his other arm he carried his cane and a shopping bag with some items in it. I led him to the stairs and informed him we'd reached it. I warned him again when he hit the last step. He asked me to escort him to the emergency exit which was some distance beyond the fare gates. I did as he requested, though I forgot to tell him which way the gate was. He asked me if I could meet him on the other side to help him find his way to the surface. I told him I would return after I'd paid my way at the fare gate. I got through before him, on account it took a passing bicyclist to help him find his way to and through the gate.

As I started to lead the way, he asked if I knew where the Walgreen's was. I said that I did, and asked was he going there?

"No, actually I'm trying to reach the E-Z Stop Deli. I've got a splitting headache and I need to get some Tylenol."

"In that case, we should use the back entrance of the station. It'll bring us out closer to where we're going."

And so, arm-in-arm again, we walked through the station and up to the street and down to the deli.

"So, do you live here in Berkeley?" I asked, hoping that the answer would be he did and that somehow this disoriented blind man would be able to figure out on his own how to get where he was going.

"I'm staying at a shelter here. They close at seven but I'm hoping they'll let me in. Is it after seven?"

"I'm pretty sure it is. It was 6:47 when I got on the train, so it has to be right around seven now."

"I'm originally from The City."

"Do you mean San Francisco?"

"Yeah. But I love it here in Berkeley. You used to be able to buy a cold one in the city for a buck fifty, now you can hardly find one for less than five. How about you, are you a student here?"

If he wasn't blind, the question would have been flattering.

"No, I live in Oakland."

"It's a good town Oakland. There's something kind of crazy about the people who live there. I've never seen folks get so attached to a town like they do in Oakland."

"I know what you're talking about. I'm in love with the city myself."

"I used to live up on the East Side, but things were always hairy in that neighborhood. I couldn't stand it."

"I used to live in the MacArthur, myself. It was a good neighborhood for me... but there was always shit going down. Now I live downtown."

"That's a good part, downtown, around the lake. They keep things under control down there."

"I know. That's one thing I like about it."

"Say, where are you going anyhow?"

"I'm just looking for something to eat. Have you ever heard of Bongo Burger?"

"Never heard of it. Where is that?"

"Down along Center."

"You're going to Center? Can you help me find my way back? The shelter's on the corner of Center and Milvia."

To be perfectly honest, I wanted to say no. I hadn't exactly signed on for an evening of milling about Berkeley with a blind bum for company. But I knew I wasn't really going anywhere in a hurry (especially since I was pretty certain Bongo Burger would be closed on Sunday anyhow), so I agreed.

At the deli, I went and found a can of coke for him, which he used to wash down the Tylenol he purchased from behind the counter. The woman didn't seem to know him. Her English was poor and his was black, so they had a lot of trouble communicating. He asked after a guy named Jack, and called out to him over the counter when he realized she couldn't understand what he was saying. For a second I thought maybe the guy slicing cold cuts was "Jack," but if so he didn't give any evidence of it. Never even looked over his shoulder.

On the way to the center, he asked my name. I told him, and found out he was called "Ralph" - though he preferred his given name, "Raphael." I called him Raphael.

"What do you do for a living, Geoff?"

"I'm a secretary."

"Really? Where at?"

I told him.

"That must pay pretty well, doesn't it?"

"Not really. Well enough to support a single person. But not much better than that."

"Do you think you could spare a couple of bucks?"

"No."

At this point, we were kind of running out of topics. I was kind of curious about his blindness - I've often wondered what it's like to be blind. But I do know it's not considered tactful to ask folks about their maladies. I also kind of figure that tact is really just prejudice's pretense of virtue, so I figured I'd settle for a compromise question:

"So, how long have you been blind? Did it happen to you or were you born this way?"

"I had glaucoma as a young man, and my eyesight was never very good. But I knew how to use it, 'cuz it was all I had. But back in '73 they told me they could cure it with surgery. I knew it wasn't going to get any better, so I figured I'd go for it. I was 19. When it was over, they said I'd be able to see better. But I told them jackasses that I couldn't see at all. My eyesight may have been bad, but I know the difference between bad and blind. I think they cut the retinal nerve - for all I know my corneas could be as good as yours, but there's nothing coming in to tell me what I see."

We reached the center. It closed its doors at seven, so we couldn't go in through the front. Fortunately, a young man was sitting on the steps. I asked him how we could get in, and he sent me around to the back. When we got there, Raphael though he knew the way. He pulled out his cane and started leading me, but as we drew up to a pile of vines clinging to the wall, I realized he was still hopelessly lost. I turned him around and we headed to the nearest door I could see. It proved to be the door to a stairwell - I could see that through the glass which Raphael assured me wasn't part of the door we were looking for. Then, I saw through a basement window a room full of people eating. I figured that must be the shelter. I banged on the window, and a guy who saw me started making a strange circling gesture with his hands. I didn't know what the fuck he was saying, but each time I shrugged and said "WHAT?" he just made the same damn meaningless gesture.

"I think he wants us to go around to the other side of the building." I said. "But before we do, let's just head down the rest of this wall, and see if there isn't another door."

There was a door, at the top of a short staircase, but Raphael said the door would be DOWN some stairs, not UP and the door did appear to be boarded shut. Then I saw another little door at the bottom of a short stairwell at the very corner of the building, nearly obscured behind the metal of a fire ladder. We went to that door and banged on it. Nobody came. We banged some more. Nothing. Finally, Raphael said, "there should be a buzzer."

And lo, finally I could see! There was a buzzer, just as he'd predicted. Honestly, I don't know how I missed it. I pressed the buzzer and a voice came back:
"Who's there?"

"It's me, Ralph."

"The shelter closes at seven, Ralph. You know that."

"I was still hoping maybe it's not too late to make a bid for a bed."

"One second."

The guy who finally opened the door was angry. He didn't even acknowledge my presence.

"You know this place, Ralph. You know the door closes at seven. You have to get here on time, or you don't get a place."

"I'm sorry. Is there room tonight? I tried to make it by seven."

"Get in."

And that was that.

The whole experience had left me kind of grumpy. In my younger days, I probably would have felt proud of myself for helping someone in need. But it seemed to me that I'd only given him some time I wasn't really putting a premium on anyhow - and if it didn't matter to me, what the fuck was there to be smug about in giving it away? I wanted to get mad at our society... that usually works for me. Why the hell do we allow the blind to walk the streets alone in search of shelter on the coldest nights of the year? Why did doctors carve this man up, then toss him away when they failed him? He was a nice enough guy, seemed pretty smart. Was it his fault he couldn't see? Was he to blame that he wasn't resourceful enough to take care of himself? Was it just that he had to choose between the humiliation of a lecture or a night spent shivering in the gutter?

But, being in a Biblical frame of mind, it was sort of hard to work myself up about it. Didn't Jesus say we'd always have the poor with us? (Whitmanesque, that character is.) Doesn't this bear his theory out? Is it the world's fault that it's no better nor worse than its making? That some are deprived and grateful, others endowed and heedless? At least this guy had a healthy sense of perspective. He hadn't once been self-pitying. What place had I to pity him?

Better to just acknowledge that it was time enjoyed which left me depressed and move on.

I decided to take dinner at the Viet Nam Village in the Berkeley food court.

Once I had been trapped in the city of Berkeley - my summer lease having expired with the start of the UC school year, but having a month left to kill before the start of my own. While I waited for one of my brothers to drive up from Orange County and give me a ride home, I'd couch-surfed around the town, gradually using up the last of my dollars. Three days before I could leave, I'd come to my last five bucks. After spending them on cigarettes, I got involved in some bizarre barter arrangement that put me back at five dollars again. So I went to Viet Nam Village to buy myself some food.

I had ordered the Vietnamese Fried Chicken ($4.50). I ate until I was stuffed (no mean amount) and found I had barely diminished the food in the container. The next day I reheated it and ate my fill again. There was still more than I could finish. The third day, I finally finished it. Maybe if I'd been born in a more credulous age, I'd have figured that was a miracle. Instead, I simply found it an implausible convenience.

But, it seemed a decent time to re-enact the meal. The price had risen to $4.75, and this time I could afford a Coke to wash it down. I finished the plate.

I'm already hungry again and it can't be more than three hours later.

Ah, well... can't step in the same stream twice...

Interesting Tech News

2005-05-18T13:27:00.000-07:00

A friend showed me the site for MythTV yesterday - an open source project that is making a free "TiVo-on-steroids" program. As its creator describes it:

MythTV is a homebrew PVR project that I've been working on in my spare time. It's been under heavy development for two years, and is now quite useable and featureful.

It's really an interesting illustration of the open-source mindset (and the potentials it brings). As my friend put it "As long as you're recording it, why wouldn't you want to be able to edit the images while you're at it?"

The future of DIY...

Chatterbox

2005-05-18T11:39:00.000-07:00

Timothy Noah, primary author of Slate's "Chatterbox" column has an interesting reaction to the Democratic Party's response to its alienation from power:

I never thought I'd see the day when preservation of the filibuster became a grass-roots liberal cause, but that day seems to have arrived. College students are staging mock filibusters at universities across the country. Once upon a time, student activists decried the immorality of the Vietnam War and U.S. investment in the apartheid regime in South Africa. Their protests helped change the world. Today student activists are defending a parliamentary rule that enabled southern bigots to block civil rights legislation for nearly a century! They're defending demosclerosis! They're defending the right of the minority to thwart the will of the majority! Oh sure, it all has something to do with bad judicial nominations, too. But the street theater isn't about bad judges. It's about Robert's Rules of Order.

Count me out.

The soundness of the Democratic Party's defeat in 2004 was bound to lead to recriminations and a redirection of the party. But it does seem that they are staggering deeper into the thicket, rather than feeling their way back to the high road.

Is the platform of the Democratic Party fundamentally flawed? Is it revising its sense of purpose and agenda within the new political order? Or is it redoubling its efforts to drive away central components of its constituency? In its frustration with democracy's results, is the Democratic Party abandoning its democratic values?

Maybe...

Good Quotes

2005-03-21T23:06:00.000-08:00

Well, ordinarily I'd just write 'em in the notebook, but in the interests of reviving my habit of blogging, here's some nice passages from Stendhal's Charterhouse of Parma:

Morality:

'The Raversi is not a woman to be disregarded,' the Conte remarked to his mistress, 'I consider her so far capable of resorting to any underhand measure that I separated from my wife solely because she insisted on taking as a lover Calaiere Bentivoglio, a friend of the Marchesa.'

Intelligence:

He was far from employing his time in a patient examination of the actual character of things in order to discover their causes. Reality still seemed to him dull and sordid. I can understand a person's not caring to look it in the face, but then he ought not to argue about it. Above all, he should not manufacture oubjections out of the various bits and pieces of his ignorance.

America:

On the other hand, in a republic such as America, one is forced to bore oneself the whole day long by paying serious court to the shopkeepers in the street, and become as dull and stupid as they are; and over there, one has no Opera.

Reasoning it Through...

2005-03-14T13:09:00.000-08:00

I just finished reading Two Person Game Theory by Anatol Rapoport. I'll freely confess that much of the mathematics was over my head, despite his admirable restraint in limiting his discussion as closely as possible to basic algebraic equations. But, in an effort to test my absorption, I'd like to tentatively apply the basic tenets of game theory to the practice of plea bargaining to see if we can rationally predict the outcome of policy decisions in the criminal justice process.

So, let's take the case of Patsy Jarrett, who claims to be entirely innocent of charges for murder and robbery. Since the court system is adversarial in nature, the other "player" in this scenario would be the Prosecutor. Since the payoffs don't have a strict correlation (the prosecutor's interest in winning a conviction is not exactly identical to the defendant's interest in avoiding a life sentence), it would be a non-zero sum nonnegotiable game. Now, one of the cool tools of game theory is the game matrix - in this game, our matrix would look like this:

	D₁	D₂
P₁	(a, w)	(b, x)
P₂	(c, y)	(d, z)

P₁ and P₂ would represent the two strategies available to the Prosecutor - Negotiate or Prosecute. D₁ and D₂ would represent the similar strategies available to the defendant - Negotiate or Prosecute. The utility values at each location on the game matrice would represent the value to each player (a-d for prosecutor, w-z for defendant) of the outcome attaining at that overlap of the two strategies.

However, there's another factor which we should also consider, so I'll just throw it in here now - which is the probability of one side prevailing over the other if the case should actually go to trial - i.e., there is some probability that the Prosecutor would win, and some probability that the defendant would win in a trial outcome. Since P's taken, let's use the value N to signify the probability that the prosecutor will prevail in a trial. Also, since the values of winning and losing are the same in all instances where the case goes to trial, we can also simplify the chart considerably by using similar values in each case:

	D₁	D₂
P₁	1(a, x)	N(b, y); (1-N)(c, z)
P₂	N(b, y); (1-N)(c, z)	N(b, y); (1-N)(c, z)

OK. So that gives us a matrix... now, let's see if we can come up with some applicative values for the corresponding "utilities" in the chart. Let's stipulate that the prosecutor fully believes in the guilt of the defendant, thus eliminating any utility cost to the prospect of placing the wrong person in prison. From the prosecutor's perspective then, his interests are securing a conviction. To a large extent, his personal motive (say career advancement) would also be entirely congruent with a justice motive (since he believes justice will be served by a conviction). So, we could estimate that his value for securing a conviction is 1 and that his value for failing to do so is -1. If that were the case, then a=b, since the prosecutor is indifferent to whether the defendant is convicted or pleads. However, let's assume that the prosecutor also has an interest in securing the longest possible prison sentence. Thus, his potential outcomes are 25-life in the case of a conviction, 10-15 years for a plea bargain, and 0 years for an exoneration in open court. We can then say with confidence that, of the potential prosecutorial outcomes, the preference for b > a > c. Since c is also defined in this context as a negative outcome, we also know that c < 0.

The outcomes of the defendant are identical to those of the prosecutor (25-life, 10-15, and 0). Intriguingly, however, receiving a sentence of zero years is hard to really classify as a payoff. Though there may be some positive value to securing an exoneration, surely this would be largely offset by the costs of the trial and trauma of being falsely accused. It may be better to be falsely accused and exonerated than to be falsely accused and convicted, but neither is preferable to not being accused at all. Thus, in the defendant's case, 0 > z > x > y.

So one thing that starts to loom large in this picture is the importance of that value N.

Intriguingly, this value appears to be highly dependent upon the judge presiding over the trial. The article linked cites the various conviction rates of judges dealing with one specific class of cases (DWI) within a single county (Mecklenberg County, North Carolina). They range from a high of 86% to a low of 40%. Though it may be an unjustified assumption, let's assume there are similar discrepancies throughout the system.

Now, I want to arbitrarily assign numeric values to the preferences (because I suck at math) so I'm going to propose a practical method for assessing the defendant's preference values - let's say that each of her negative preferences is conditioned by the amount of life the outcome will "cost" her. Thus, if we estimate that the average length of a trial is one year and the defendant's estimated remaining lifespan at the time of trial is 50 years, the most preferable outcome (exoneration) will have a value of -0.02. A plea bargain will have a cost ranging from -0.2 to -0.3. And a conviction will have a cost ranging from -0.5 to -1. If its rational for the decisionmaker to assume the worst outcome under each probability, we then get values of x=-0.3, y=-1, z=-0.02

Now, the way this game is set up, the moves are not made simultaneously, but rather in sequence. The defendant cannot unilaterally plea bargain - the prosecutor must offer a plea. So, the defendant has perfect knowledge of the prosecutor's first move. The only time the defendant can really make a choice is when the the Prosecutor selects strategy P₁. At this point, the Defendant is forced to choose between D₁ and D₂. Now, let's say that the defendant is facing a judge with a conviction rate of 50%. We now have the following decision matrix:

	D₁	D₂
P₁	-0.3	(0.5) * (-1); (0.5) * (-0.02)

So, on average an innocent defendant would receive a "payout" of -0.51 for choosing the trial and a guaranteed payout of -0.3 for choosing the plea bargain. Thus, it would be irrational to choose the trial. In order to provide a rational incentive for the innocent defendant to brave a trial, the conviction rate (ideally, of innocent defendants, realistically that figure isn't available) would have to be low enough that the average of all defendants would do better on a trial than a plea bargain. If I'm not mistaken (seriously big if), the conviction rate would have to be no more than 27%. Given that the conviction rate is far higher than this, and assuming my assumptions of relative costs aren't too far out of whack, this would help explain why 95% of all defendants decide to plead... even if you're innocent, the most rational decision is to take the plea bargain.

I'd like to develop further the policy ramifications of this... but I think I need to flesh it out more fully (taking a stab at the prosecutorial incentive structure, double-checking my math, etc.).

More later...

Oakland Arcana

2005-03-14T12:47:00.000-08:00

If you're reading this (an unlikely supposition - only someone with an RSS feed would likely even be aware), then allow me to direct you to my mayor's blog. He's a fascinating politician who I admire a great deal, and his site is likely to be of continuing interest (provided he keeps it up).

Clearing Up the Backblog

2005-03-14T12:19:00.000-08:00

New posts coming shortly...

Small Mercies

2004-11-18T10:20:00.000-08:00

I was a witness to a car accident on my way into the office today. A woman not
paying attention just sailed through a red into cross traffic. The car she hit
spun out and its driver momentarily lost consciousness so it started just kind
of drifting forward. It motored up onto the sidewalk and was just driving down
the sidewalk. This man was walking down the sidewalk with his small son, maybe
two or three years old. He was just staring at the car bearing down on him
like a deer in the headlights. I myself was standing in the middle of the
intersection. Seeing the car heading down on the man and his son people kind
of snapped awake and started yelling at him. At almost the last possible
second he seemed to snap back awake, grabbed his son and jumped out of the
way. The car soon after bumped a wall and came to a stop.

Thank God for small mercies. The drivers of both cars were OK (the one who
apparently lost consciousness for a moment didn't want an ambulance, but the
police talked her into accepting it). So, nobody hurt (or if so, none too
bad).

Watching that car bearing down on that child like that... a short, poignant case-study in the misery and fear of helplessness.

Another Great Article

2004-11-18T01:21:00.000-08:00

From the Washington Post

Please read it.

Really good reading.

2004-11-17T14:02:00.000-08:00

I recommend this article at TNR on the "pscyhology of the undecided voter."

It's a great read.

Posting to Resume

2004-11-16T09:14:00.000-08:00

Shortly. I've been working on my suggestions for the Democratic Party. This is a quick follow-up to the post immediately below, regarding DoD Casualty Statistics. The DoD no longer makes an archive of the casualty reports available, but I noted four days ago, on November 12th that the Pentagon reported 791 KIA "post combat" and 4100 WNRTD (Wounded, Not Returning to Duty) "post combat."

Four days later, that count stands as follows:
831 KIA, 4478 WNRTD

That's 418 soldiers disabled or killed over the last four day period, almost 110 soldiers per day. Hopefully, this is just a blip attributable to the combination of intensive operations in Fallujah and an insurgent flare-up throughout Central Iraq. I don't see how U.S. Forces can sustain that kind of casualty rate on a regular basis without necessitating an increase in troop strength.

Hmmm...

2004-11-12T13:08:00.000-08:00

I often check the DefenseLink Casualty Reports to get a sense of what's going on in Iraq and Afghanistan. Checking today to see what the totals bode, it hit me how absurd the categories they use to classify when a casualty occurred. Casulaties are broken down into three categories:

DoD Civilians
"Combat Operations - 19 Mar 03 thru 30 Apr 03"
"Post Combat Ops - 1 May thru Present

109 were KIA during "Combat Ops", whereas 791 have died "Post" combat... 411 wounded not returning to duty "during combat", 4100 wounded "post-combat." 138 dead "during combat", 1166 dead "post combat". 542 wounded "during combat", 7916 wounded "post combat".

It's really a very inapt classification - a stark indicator of the absurdity of our current worldview - that such a vast bulk of our casualties in this war would be considered "post-combat." I often get scolded for thinking too "short-term" in my pessimism about this war.

What then to say of the organizers of this war who arbitrarily divide it into a "combat" phase and a "post combat" phase?

Why Democrats Suck

2004-11-11T10:07:00.000-08:00

GOD, I hate them! From today's NY Times:

While the selection of Mr. Gonzales as attorney general may create a public fight, some Senate Democrats said they might want to save their heavy ammunition for what is expected to be a battle over possible Supreme Court nominees rather than expending it on what is likely to be a losing cause for attorney general.

Hello, Democrats! All your causes are losing causes!

In the meantime, President Bush is appointing a lawyer deeply implicated in the Torture Memo scandal to the position of Attorney General. You know, that jurisprudential bodice-ripper with this sizzling finale:

For the foregoing reasons, we conclude that torture as defined in and proscribed by Sections 2340-2340A, covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like posttraumatic stress disorder. Additionally, such sever mental pain can arise only from the predicate acts listed in Section 2340. Because the act inflicting torture are extreme, there is significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of ttorture.

Further, we conclude that under the circumstances of the current war against al Qaeda and its allies, application of Section 2340A to interrogations undertaken pursuant to the President's Commander-in-Chief powers may be unconstitutional. Finally, even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability.

This IS the heavy ammunition. Sure, Democrats aren't likely to be able to prevent this nomination. But they damned well better use this opportunity to underscore just what a moral outarge this appointment would be.

Repulsive

2004-11-10T13:05:00.000-08:00

I dunno much about this guy Adam Yoshida, but I hear he's a relatively prominent conservative blogger. Anyhow, the following passage was brought to my attention. I find it revolting:

Let’s face a hard truth: this was the bitterest Presidential campaign in living memory. The Democrats and their allies staked everything on the defeat of this President. All of the resources they had accumulated over a generation of struggle were thrown into this battle: and they have failed. Despite all of their tricks, despite all of their lies, the people have rejected them. They mean nothing. They are worth nothing. There’s no point in trying to reach out to them because they won’t be reached out to. We’ve got their teeth clutching the sidewalk and out boot above their head. Now’s the time to curb-stomp the bastards.

Tactics - The Senate

2004-11-09T19:24:00.000-08:00

One thing I think the Democratic Party should focus on like a laser is consolidating its regional strength. Consider the following:

Senate Control, By State and Party

Red indicates both Senate seats are held by Republicans, Blue indicates both are held by Democrats, and green indicates a split delegation.

There are 9 Republican Senators hailing from "the Blue States." There are 16 Democratic Senators coming from "the Red States."

In the next class of Senators up for re-election, 18 are Democrats and 15 are Republicans.

I hate to say it, but those moderate New England liberal Republicans need to be brought down. Democrats need to make New England Republicanism as rare as Southern Democrats have become. There's not enough "blue states" to regain control of the Senate through regional dominance alone. But without regional dominance, we're driving without insurance. And Rick Santorum? He needs to be brought down. If we can't take that bigot out of Pennsylvania's Senate seat in 2006, we'll deserve what we get.

I'll spend more time over the next year looking at individual Senators and try to figure out who's weak and who's strong. My instinct suggests we should go after Bill Frist with a vengeance in 2006, just as they've done to Daschle (hey, Al Gore! Got any plans?). If not to win, at least to take him down a notch and to keep them fighting for home turf... But to do so, would require a concerted effort to "soften him up" by pinning as much credit for Republican "misbehavior" as possible. I'd like to think Trent Lott can be drawn into a nasty campaign that, like Alan Keyes in Illinois would provide enough drama to embarrass Republicans throughout the nation. A good competition against Lott in 2006 seems like it could do a lot of good for Democratic candidates in liberal states.

Knowing nothing about the incumbents and their reputations at home, I'd suspect that Virginia, Missouri, Nevada, and Ohio offer some shots. If John Kyl is who I think he is, he'd be a hard candidate to beat in Arizona without developing an authentic libertarian plank for the Democratic Platform (something I strongly believe we should, and will clarify later).

As for the Democrats, I suspect they'll face stiff competition in 2006 in Nebraska, Florida, Wisconsin, Minnesota, West Virgina, New Mexico, and North Dakota.

A Legacy or a Mandate?

2004-11-09T15:55:00.000-08:00

As Democrats hash out the way to go forward, many will be tempted to flirt with the idea that Clinton brought them two victories, and thus the key lies with his counsel. Don't believe it. Bill Clinton did not win the kind of victories that the Democratic Party needs. The presence of Ross Perot on the ballot in 1992 and 1996 helped to mask the fundamental weakness of Clinton's support. However, if Dole had simply carried each state in which the combined total of Dole's votes and Perot's votes exceeded his own votes, he would have lost the election of '96.

Here is how the election actually turned out:

Here is how it would have turned out if Perot is added to Dole:

What a difference a freak makes. Bob Dole wins the second scenario by 288 electoral votse to Bill Clinton's 250. Clinton got lucky. Careful about putting your money on Clintonism.

Think you're angry?

2004-11-09T10:37:00.000-08:00

Check out fuckthesouth.com

Lord Almighty...

2004-11-09T01:26:00.000-08:00

Watching Scarborough Country... "they just don't get it, that an entire society is under attack" - referring to American liberals for... well... trying to live in accordance with their social values, so far as I can tell.

The Democrats are still to blame! If they weren't being "insane" or calling them "theocrats" there would be no problem! Feel the outrage! America, those liberals hate you AND your God!

What a victory party...

Drinking the Blues Away

2004-11-08T17:10:00.000-08:00

All evidence indicates that Democrats will be frequently looking for consolation in the coming years of Republican hegemony. And, as you decadent coastal elitists surely know, nothing numbs the pain like a good shot of booze. So, I present to you my “Cocktails of Condolence – A Whine List for the Wearied.”

Kentucky Bourbon – This drink is a little rough going down, and the rougher the better. It should be drunk on the occasion of Democratic incumbents (any office) in the South or Midwest being defeated by arch-conservative Republicans.

Vodka – I recommend learning to drink vodka without mixer nor chaser. It is best drunk on the occasion of illiberal crackdowns in Russia by Vladimir Putin that go unremarked by the U.S. Administration.

Screwdriver – Best to drink when taking it straight in the eye. I recommend this soothing beverage in the event of a Bush Administration employee retaining his job after an amazingly egregious act of incompetence.

Manhattan – Should that next terrorist attack come, striking at a vulnerable urban target which still remains unsecured years after 9/11, this will be the only drink for you.

Rob Roy – Perfect for commiserating on the destruction of another cherished federal institution at the hands of some Republican firebrand.

Highballs - An old-fashioned beverage perfect for marking the appointment of a former lobbyist or corporate officer to the regulatory agency of the industry they used to represent.

Cognac - Reserve this beverage for the occasion of a senior Administration official crudely and sneeringly insulting traditional American allies. It would also be appropriate in the event of your political region being described by such a person as "practically French."

Irish Whiskey - Nothing serves better than this drink to lessen the pain of major new "moral values" legislation restricting the rights of gays, promoting abstinence-only "sex education," or further restricting women's access to legal abortion.

Rusty Nails - The perfect drink for news that makes you crave a vaccination. Imbibe heartily when reports are released of increased numbers without health insurance or major reductions in spending for programs delivering health care to society's poorest.

Malt Liquor - A beverage of solidarity, ideal for celebrating the release of the latest unemployment report. Especially prudent if you find yourself counted in the latest statistic.

Gin and Tonic - Easy drinking to accompany revised deficit projections or upward revisions to the federal credit limit.

Sex on the Beach - When the Administration advances a new "environmental protection" initiative that rolls back long-standing environmental regulations, nothing will drown your sorrows better.

Cosmopolitan - If your city is forced to lay off employees or scale back essential services on account of unfair federal redistributionism transferring your great city's wealth to America's anguished "heartland," you'll find the Cosmo resonating perfectly with your world-weary despair.

Scotch Whiskey - The only thing harder than understanding a Scottish dialect is making sense of the President's latest syntactically mangled proposal. When your President says something you just don't understand or too blunt to believe, help yourself to a night of Scotch.

The Radical Centrist Fringe

2004-11-08T11:45:00.000-08:00

There are many changes that I feel the Democratic Party should adopt - both substantive and stylistic; conceptual and practical; regional and national. I'd like to begin by identifying what strikes me as a conceptual flaw in the way the national party has been thinking lately.

The mentality is perfectly embodied by former President Clinton, whose career was built by poaching the most popular elements of the Republican platform but saw very little advance in any of the domestic issues important to liberals. Apparently, before this election, Clinton's advice to Kerry was to endorse the anti-marriage referendums - a stance which Kerry, massively to his credit, rejected.

The operative logic of this conceit is that somewhere there is a "middle" of the American political spectrum waiting for a politician to sweep in from the skies and capture their hearts with personal charm and a bag full of "moderate" policies.

The problem with this logic is that it distorts the reality of the political process. Most people aren't moderates at all. They have some conservatives beliefs, some liberal beliefs. They endorse some conservative policies, and they endorse some liberal policies. If I could have a dime for every self-described moderate who came out with some outlandishly winger-sounding ideal, I'd be a wealthy man.

Generally speaking, the electorate cleaves into those who are party-ticket voters and those who are not. The moderates are those whose loyalty is ambivalent and can be swung by the right appeal. Average this lump together and ask them about their specific opinions, and you'll probably come up with the perfectly "moderate" agenda. But if one "moderate" is really big on universal health care and really big on free trade while the other "moderate" is opposed to both, the two are as likely to cancel each other out if you endorse both universal health care and protectionism - even if both together form the "moderate mean." What it leads to are victories like Clinton's - cheap and narrow victories of chance against a fractiously divided opponent. If the Democratic Party wants to spend a decade warming the bench during fraticidal Republican spats, then by all means, let us "chase" the moderates...

The alternative, however, is for the Democratic Party to start re-investing in the concept of "leadership" - smart, articulate, convincing proponents of a package of policies (more on what those policies should be) which drive the political debate back in our direction. Even silly stunts like Gingrich's TV-Guide "Contract for America" that get our vision and our plans into the public debate. Republicans have been talking about privatizing Social Security since 1994. Their proposal is certainly still unpopular. But they've reduced the voltage on politic's third-rail, and the more they keep at it, the more they will innoculate themselves against election-based punishment for it. Democrats don't need to expunge every unpopular idea they have. What they need to do is start launching a credible advocacy campaign for their unpopular opinions, and wed that to a "go-slow" approach at the policy level for any policy that is widely reviled - building confidence that our principles are consistent, but that we have no revolutionary intentions to ram them down anyone's throat.

So, going forward into the debate about whither the Democratic Party, I think it important to reject this idea that we have to chase the center. We have to lead it. And leadership begins with the assumption that those who are asked to follow don't necessarily know where they are trying to go, but will follow whoever offers the best vision of a destination and a route to get there.

Come, imbibe my potion...

2004-11-08T09:45:00.000-08:00

one draught and all your defeats will be transformed into victories. I offer you the bitter brew of denial.

Liberals, we didn't lose the election! It was stolen from us! Somehow, the record turnout by Republicans in nearly every district of the country was merely a mirage... a phantasm sent by the cruelest of the Fates to obstruct your plans and deliver you into darkness.

Reject it! You really won a majority! It was just so silent nobody can hear its screams of protestations.

George W. Bush went to Iraq to discover weapons that didn't exist.

Paranoid Democrats nation-wide are going to the election results to discover a majority that didn't exist.

Please, my fellow Democrats. Be more like Bush. You must be prepared to destroy our democracy in your efforts to save it. Reject empirical evidence. Bend the truth, bend the facts, bend your very brains themselves to win back our mangled victory from the jaws of defeat.

My First Reactions

2004-11-04T21:50:00.000-08:00

My, what an election! I've been reticent to weigh in with an immediate post-election reaction, because I figured a few days to cool off and sort things out would do me some good. And, I'm feeling better now. Some reflections on Tuesday's elections:

Congratulations, President Bush: I have to hand it to him. He won, and he won well. Over the last few days I've had to spend quite some time trying to wean despondent liberals away from the comforting illusion that this election was marred by some secret fraud. I've looked at the numbers, and I have to say that Bush won this election the hard way - by doing better than before almost everywhere. The Democrats incontestibly put on the best election of their life. We got within 100 thousand votes of the brass ring in Ohio, and Kerry netted 4 million more votes than Gore. And both of those candidates put Clinton's two election numbers to shame (he never did win a majority, I might remind you...). But Bush just turned it on at an even higher level. I'm obviously dejected that the wrong guy won. But at least he won the right way - by winning without technicalities. As I told one friend, it just doesn't pay to pretend against all evidence that a secret majority backs your point of view. That's what Communists do... and who wants to end up like that?
Congratulations, Senator Kerry: As you can see, Slate's already posed the question, "Why does America hate Democrats?" The question is inherently unfair. We won 48%, the President 51%. This was a vigorous and well-fought election. What's more, Kerry won more votes than even Ronald Reagan did in 1984. 55.9 million votes. We may have been defeated, but we didn't lose. This was the best Democratic campaign of my lifetime. It just wasn't good enough. Of course, we'll need to ask why we lost. And, more importantly, we'll need to ask how to win the next one. But we shouldn't let our defeat obscure our vision of just how well we did in this election.
Welcome to the Opposition: I find myself hoping that the Democrats will now come to terms with the outsideness of our new outsider status. More importantly than the Presidency, we got trounced in the Senate. The time has come to stop running on dire warnings of horrors to come, and start running as an opposition to what is. The Republicans have all the power, and as Democrats would do well to remember from their own time in power, with power comes corruption. A fiery Newt Gingrich began his party's reascendance by going after the ethical lapses of a House Majority leader. As the opposition, our party will be doing the nation a disservice if it doesn't ferret out abuses of power by the governing party and bring a spotlight to bear upon them. So, memo to Republican congressmen... be very scrupulous with those postage stamps.
The Republican Coalition: They've got a narrow but winning coalition right now. I disagree with Saletan that the way back to the big time is simply a matter of framing. It's also a matter of policy. The Democratic Party is going to need new policies, hopefully the kind of innovative policies that have always been the prerogative of the outsider party. More importantly, our goal shouldn't be to blunder into a majority by confusing a few befuddled suckers. That Republican juggernaut isn't invincible. There's a core Republican constituency that the Democratic Party can't have and shouldn't want - it's clear that there is in fact a values gulf dividing the "two Americas" and there's a moral hazard inherent in chasing the wrong demographic. But in the Republican tent, some folks are more equal than others. The trick is to identify ambivalent constituencies that have buoyed the Republican Party and to win them over, through genuine change, without sacrificing our core principles and beliefs. I'd pick Catholics and libertarians as the most vulnerable elements of their coalition, but I'll dwell on that at another time.
Hello, Federalism: It's clear that there's not just an ideological divide in America. There's a geographic one as well. Democrats would do well to push for a looser union. California just upped its top-tier income tax, we've committed to funding stem cell research, and we've proven an openness (through referendum, no less) to a wide variety of liberal-minded experiments. With newcomers to the Senate like DeMintt and Coburn, we should start pressing hard to let live and be let alone. We may be one country, but the best way to stay that way is to press ahead with multiple systems. I worry what a more autonomous South might decide to do, from my perspective of universal human rights, if the states were given a longer leash... but I worry more what a "Big Red Fed" is gonna' do to my beloved California.
Anti-Government: Liberals, take a deep breath and repeat after me - "It's their government." Are you counting on the judiciary to protect your rights from legislative encroachment? Give it up, now. That's a pipe dream. Roe v. Wade is doomed. If you want a consolation prize, consider a post Roe union with 30 states preserving a woman's right, and NARAL turning into a Greyhound travel agency. Gays like me? Don't look to the courts - we can hope for stare decisis to keep Lawrence in place for another 20 years. But in the meantime, we got to change some hearts and minds and get some laws passed. If we can't do it, then the writing's on the wall. The Democratic Party has gotten sucker-punched by issues delivered through the back-door of the democratic process. As for the laws we may or may not see in the next few years that will strike some of us as restricting essential liberties... I've got one mantra for you to keep chanting - "we seek the consent of the governed, not just their compliance."
Suffrage: On Election Night, I spoke with a friend of mine who lives in Ohio. He had gotten to his polling place at 7am, and waited in line for an hour and a half before having to give up and go to his job. He came back later and waited in line for another 5 and 1/2 hours. Reports came in from all across the country of people waiting in 6 or 7 hour lines just to vote. Elsewhere in this country, the entire process didn't take longer than twenty minutes. I'm willing to concede that those who abandoned the line probably didn't make a decisive difference to the race's outcome. But it's simply unacceptable to have people waiting in six-hour lines on a work day. I won't demand a particular solution. Perhaps it's expanded early voting. Perhaps it's an election-day holiday. Perhaps it's precincts equipped to deal with maximum turnout rather than anticipated turnout. But I hope we can all agree that no American citizen should be unable to cast their vote by a failure of the process.
E-voting: I still think this is a very bad idea (though I vote this manner myself). The paper trail would ameliorate it. But as a man who works professionally with computers, I think it's a fool's errand to entrust our nation's electoral process to them.
George W. Bush: My opinions of him should be well known, but just in case the aren't, I've hated him and thought he didn't deserve to be President. Morally, that may still be true, but he clearly earned the Presidency this time, whether deserving or no. I'm willing to give him a small "grace period." My private hope? That a second term will set him free from concern for his re-election and we'll find him a very different President than he's been. I've heard Ashcroft is retiring, which strikes me as good news. There's likely a Supreme Court appointment coming. Powell may be replaced. Rumsfeld should be. I'm not expecting a second term to be much different from the first, in which case I expect I'll soon be back to where I was. But, as long as I find the man a moral mediocrity, I can certainly hope that he's been a complete hypocrite all this time, and the second term will show a new man, beholden to noone and guided by some inner light less dim than what we've beheld...
Gay Marriage: We gays got a long road ahead of us. I don't believe our rights will mean a thing until they've been democratically ratified through the legislative or referendum process. I simply don't want my essential freedoms to hang upon the hooks of a judge's cloakroom. So, I figure I have a lifetime of hard work ahead of me persuading people that reciprocal love and reciprocal commitment are to be cherished wherever they're found. And, in that work, bitterness and resentment aren't going to help me one bit. But I hope you'll understand if I allow myself just one little burst of animosity: Fuck Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah. And, more broadly, fuck all the voters who's primary rationale for voting Bush was fear of gay marriage. If there was some reason to think that gays already had the right to get married, I could understand this kind of thing. But a look at the generation under 30 shows me that the day is coming, and sliding constitutional padlocks onto the door of that emerging consensus really frustrates me. But, now that I've got that emotional reaction out of my system, we can revisit the issue's merits... as I'm sure I'll be doing for as many years as I'll be drawing breath...

Analyzing Defeat

2004-11-04T15:56:00.000-08:00

So, we lost. Big time and fair and square. I'm in a period of reflection upon this. I invested a lot in the election, and I've got a lot to chew on after our defeat. Narrow, but substantial.

So, over the next few days, at no particularly guaranteed intervals and in no particular order, I'll be posting various elements of my emerging thought. I figure they'll break down into three categories:

1) Which way from here for the Democratic Party?

2) How to evangelize for my core beliefs and values (clearly not popular ones)?

3) What would New Liberalism look like? Why would it appeal to more people?

4) What have I misunderstood about the relation between evidence and reality? What have I misunderstood about politics?

5) Where next for me?

Hearkening Update

2004-11-02T15:51:00.000-08:00

Email from a friend who received from a political operative:

As of 5 pm, John Kerry has gone up by over two points nationally. His
lead will increase to more than three. No one who is involved in the
exit poll operation or in any of the networks believe that Bush can win.

The only major surprise from the last update in that Kerry has gone two
points up in VIRGINIA. Also, the size of Kerry's showing in
Pennsyvlania (he's up by 14) is putting Hoeffel awfully close to
Specter. Daschle is still down, but not by as much. Knowles and
Salazar will win. Bunning's lead has fallen into the margin of error
and that race is too close to call. Castor looks like she's winning in
Florida. DeMint has pulled back ahead in SC but it's close.
Interestingly, North Carolina is now too-close-to-call, with four models
projecting Burr and three models projecting Bowles.

Internet Troubles

2004-11-02T14:20:00.000-08:00

Won't be blogging much today in light of the massive server loads on everything. However, I've been following releases of early exit polls which indicate good news for Kerry. I've been following rumblings coming out of both parties, which indicate good news for Kerry. And just look at the latest results for Bush at Tradesports. He's lost 20 points since this morning! He is now trading at a 30% re-elect!

Truth Chases Fiction

2004-11-01T21:40:00.000-08:00

Dismaying New from New Mexico:

She went to Valle Del Norte Community Center in Albuquerque, planning to vote for John Kerry. "I pushed his name, but a green check mark appeared before President Bush's name," she said.
Griffith erased the vote by touching the check mark at Bush's name. That's how a voter can alter a touch-screen ballot.
She again tried to vote for Kerry, but the screen again said she had voted for Bush. The third time, the screen agreed that her vote should go to Kerry.
She faced the same problem repeatedly as she filled out the rest of the ballot. On one item, "I had to vote five or six times," she said.
Michael Cadigan, president of the Albuquerque City Council, had a similar experience when he voted at City Hall.
"I cast my vote for president. I voted for Kerry and a check mark for Bush appeared," he said.
He reported the problem immediately and was shown how to alter the ballot.
...
In Sandoval County, three Rio Rancho residents said they had a similar problem, with opposite results. They said a touch-screen machine switched their presidential votes from Bush to Kerry.

Read this

2004-11-01T16:27:00.000-08:00

Click this link

It's too bizarre to summarize. You'll laugh. Then maybe you'll cry. Then you'll probably start laughing again. Then you'll start to choke on your own snot because it's hard to laugh while crying. Then you'll just shake your head and wonder quietly to yourself "what the fuck?"

The Day Before...

2004-11-01T11:34:00.000-08:00

Here's my averaged polling results for Monday November 1st. I'll put margins below:

Bush: Strong - 213; Weak - 19; Total - 232
Kerry: Strong - 203; Weak - 103; Total - 306

Bush Narrow Margins

(Average lead for Bush of 5 polls)
Nevada: Bush +2.80%
Colorado: Bush +2.80%
New Mexico: Bush +0.75%

Kerry Narrow Margins

(Average deficit for Bush of 5 polls)
Hawaii: Bush -2.67%
Minnseota: Bush -1.25%
Iowa: Bush -1.80%
Wisconsin: Bush -4.00%
Florida: Bush -1.40%
Ohio: Bush -0.20%
Pennsylvania: Bush -4.20%
New Hampshire: Bush -4.00%

That George Bush Charm

2004-11-01T09:50:00.000-08:00

Only just now discovered the image below:

Apparently it comes from a story in his old Yale yearbook...

Here's the context that I found it in, if you care to double-check the photo's veracity. The photo apparently broke in the LA Times back in August.

Please, No...

2004-10-31T10:16:00.000-08:00

Interesting article in The New Republic from Jason Zengerle on how the "Left Wing Media Conspiracy Didn't Emerge." The article does a survey of attempts by some so-called "liberals" to create a left-wing analog to the FOX News, Wall Street Journal, Washington Times, New York Post, etc., etc. coordinate media machine. One of his big sources is David Brock, which some of you may remember as a Scaife-funded anti-Clinton zealot from the mid-90s. The idea that the liberal movement needs wingnuts poached from the margins of the far-right to make itself electorally viable is an insult.

Sure, the left takes some bruisings from bizarre episodes like the Swift Boat Veterans. But I can't think of a worse fate for America than to be captured between the conflict of two equally repulsive movements. According to David Brock:

"The disadvantage is in how you deliver your message," says Brock. "Rush [Limbaugh] reads their material on the air regularly. That's fifteen million people hearing that. I do go on Al Franken's show [on Air America] for half an hour every Wednesday, and [the nationally syndicated liberal talk-radio host] Ed Schultz's show for an hour every other Friday, but the reach isn't the same."

And this is a problem? Do we really want millions of people listening to slimeballs like David Brock?

If anything, the Democratic Party (certainly American liberals) need to double-down on the concept of "the national interest." The Democratic Party's a giant mess of an organism right now, but the inflow of anti-Conservatives to the party is a wonderful opportunity to break the special-interest death grip that has rendered the Party near obsolete and reorient the party to face the challenges confronting America with an eye to the broader issues. Lord help us if it becomes the moment the party sells out to the most cynical narcissistic firebrands who failed to cut it in the right-wing machine.

But if elections can't be won against the Republican Party without imitating it, then the nation's in grim trouble, indeed.

Friday Horse Race

2004-10-29T11:33:00.000-07:00

The Final Edition

On the Tradesports Exchange, Bush continues to lead, albeit narrowly. The Bush Industrial Index stands at 3017.3 which is a pretty healthy figure. My absurdist Tradesports Popular Projection would give Kerry a win in the popular vote by a margin of 2.6 million votes, but Bush would win the electoral college with 276 votes. In order to win, Kerry would need to win in all of his favored states and pick up Wisconsin. The "Tradesports Scenario" would break as a tie if Iowa goes to Kerry but not Wisconsin or New Mexico.

Bush: Strong - 254; Weak - 22; Total - 276
Kerry: Strong - 242; Weak - 20; Total - 260

In the polls, the setup is much more favorable to Kerry. However, it should be warned that my methodology, which I stick to scrupulously, has been designed to counteract my wishful thinking. As daily tracking polls for critical swing states have begun to proliferate, it makes the results for states like Wisconsin or Florida somewhat arbitrary. These results represent an average of five polls, but the "swing polls" could have come from one source as easily as another, and had different polls met my criteria for inclusion, Bush could be winning several states that he's now losing. Anyhow, as it stands right now, there's a Kerry lead in the electoral college with 299 electoral votes. He is trailing in the popular vote projection by 1.1 million.

Bush: Strong - 202; Weak - 37; Total - 239
Kerry: Strong - 179; Weak - 120; Total 299

Understanding the Hundred Thousand

2004-10-28T19:58:00.001-07:00

As you may know by now, Lancet has released a survey of "excess mortality" among civilians in Iraq which argues that 100,000 civilians have died as a direct result of the forces set in motion by the American invasion of Iraq. The method was to walk around from house to house asking people about family who have died since the invasion and then extrapolating the likely national total. On the one hand, this isn't a census of the dead, so it's not clear how much credence to assign it. On the ohter hand, it also catches things that previous surveys of hospitals and news accounts can't - the increased mortality directly attributable to rising lawlessness (as opposed to insurgent attacks) in the chaotic aftermath of the war.

Spencer Ackerman, over at The New Republic was somewhat skeptical of this staggeringly high number, and so he managed to get an interview with one of the scientists who helped conduct the survey and author its results. It's worth reading in full to get a handle on the methodology used, the amount of credence to ascribe to it, etc....

Understanding the Hundred Thousand

2004-10-28T19:58:00.000-07:00

Worst Case Senario

2004-10-28T19:26:00.000-07:00

This isn't the most likely tie scenario, but it seems to rank as the worst.

The scenario is predicated on Kerry losing both Ohio, Florida AND New Jersey but eking out a tie by narrowly carrying Colorado, Iowa, Wisconsin, Nevada, New Mexico, Arkansas, and New Hampshire. Why is it worrisome?

Well, it has Kerry prevailing in 23 states while Bush carries 27 (pretty much the nearest to an outright majority of states Kerry seems likely to come). New Jersey and West Virginia would be two states with Democratic delegations backing a Republican candidate with Kerry winning the vote in a large number of states with Republican-dominated Congressional delegations. States with "conflicted leanings": Tennessee, West Virginia, Arkansas, New Hampshire, Connecticut, Delaware, Pennsylvania, Michigan, Illinois, Iowa, Colorado, New Mexico, Nevada (assume Texas goes Republican due to redistricting).

Criminey!

2004-10-28T17:54:00.000-07:00

Interesting article on the phenomenon of double voting:

Other investigations revealed similar results elsewhere. The Orlando Sentinel found that 68,000 Florida voters are also registered in Georgia or North Carolina (the only two states it checked), 1,650 of whom voted twice in 2000 or 2002. The Kansas City Star discovered 300 "potential" cases of individual voter fraud, including Kansans voting in Missouri and St. Louisans voting in both the city and the surrounding suburbs.

Apparently, the number of double registrants is very large because not all states are diligent about removing voters who register elsewhere, or notifying elsewheres when new voters register in their districts. The number of "double voters" is far smaller.

But, y'know what they say...[finish that thought, cause I can't find a good aphorism]

Breaking News

2004-10-28T17:36:00.000-07:00

UPDATE: Here's the link, with the "framing allegation worse than I realized:

The details about "Caging" and what the Republicans have planned to do are coming into view. The Republicans have been compiling lists (probably in the tens of thousands) of voters whom they have culled from lists of those newly registered, mailing registered mail to them, preparing lists of those who did not accept the Republican Party mailing, and then challenging their right to vote.

A correspondent has forwarded the following article to me (not yet available through Google News from a publication without subscription requirements):

ELECTION BOARD THROWS OUT 976 CHALLENGES BY REPUBLICAN
PARTY

GOP Challenger Barbara Miller Could be Indicted on
Felony Charges

AKRON, Ohio - The Summit County Board of Elections
abruptly threw out 976 challenges of voter eligibility
by the Republican Party today after Barbara Miller,
the challenger, revealed that she did not have any
personal information about the eligibility of any of
the challenged voters.

Instead, Miller said that her challenges were based on
a list of "undeliverable mail" given to her by the
Republican Party. The list was based on a GOP mailing
sent to registered voters throughout the state of
Ohio.

After Miller presented this as her evidence, Russell
Pry, Summit County Election Board member, told her
that she could be indicted for signing a sworn
challenge without any personal knowledge about the
eligibility of the voters. Miller's reaction was to
plead the Fifth Amendment.

Catherine Herold, the first voter challenged at the
hearing, told the board that she believes that she was
on the undeliverable list because she "refused the
letter when she saw that it came from the Republican
Party." She and many others expressed anger that their
eligibility had been challenged - which could force
them to vote by provisional ballot on Nov. 2.

"This is an outrage," Herold said. "I feel as if I am
being called a liar for claiming to live at my
address."

The Summit County Board of Elections has indicated
that they plan to call in the Department of Justice to
conduct a criminal investigation of the challenges.

Following is an excerpt from a transcript of today's
hearing (for email copies contact Emilie Karrick).
Catherine Herold and Neil Klingshirn, attorney for
several of the challenged voters, are available for
interviews.

What if it ties?

2004-10-28T15:30:00.000-07:00

Below is a map indicating which party has a majority in which state's House delgation, based upon the 2002 House elections. I'll check the Constitution later to see if Senators should be included too and whether the 2004 House will make the decision or the 2002 House. But, preliminarily, what it indicates is that, in the event of an electoral college tie, Bush would crush Kerry in the House.

Red states are predominately Republican, Blue states Democrat, and Green states are equally divided between the two parties. If states were to vote on a strictly party-line basis, then Kerry would get a minimum of 15 states, 18 if you include the evens, and 19 if DC gets a vote (again, I'll check later).

However, more interesting is the evident lack of an overlap between any given state's Congressional delegation and the likely party its voters will support in the Presidential election. For example, if Arkansas and Tennessee were to go to Bush but their delegates were to vote for Kerry, what would happen? Would Congressional delegations feel any compulsion to vote for the candidate favored by their state rather than the one favored by the party?

The map below shows which states would be inordinately likely to face exactly such a dilemma - a Congressional delegation of one party representing a state that had tried to vote for the opposite party. In this map, "yellow" indicates no likely conflict, "blue" indicates a potential "Blue state" with a Republican delegation, and "red" indicates a potential "Red State" with a Democratic delegation. ("green" still represents a split delegation).

As you can see, there are as many as 12 states which might likely test the loyalty of their Republican congregations by endorsing Kerry (though some such as Missouri are greater stretches than others) and 6 states which might end up endorsing Bush against the party affiliation of their Representatives.

I'd imagine this situation could prove to be a true mess were the election to end in a tie. Later this evening, I'll try and come up with actual potential tie scenarios and nail down the exact Constitutional provisions for an electoral tie.

Equally Bizarre:

2004-10-28T13:46:00.000-07:00

Man held in 'political' screwdriver attack:

Steven Soper liked his girlfriend, but authorities say he liked President Bush more.

When his girlfriend suggested this week she wanted to vote for Kerry, officials allege it was too much for the 18-year-old Bush backer. A political argument prompted him to end their two-year relationship — and that was just for starters.

Sheriff's officials say Soper, a Marines recruit, later became so upset that he dragged 18-year-old Stacey Silveira into his suburban Lake Worth home, beat her and held her hostage with a screwdriver.

The attack led to a standoff with a Palm Beach County Sheriff's deputy that ended with Soper being zapped with a Taser. It culminated in his arrest, endangering his chances of serving in the Marines.

Getting Ugly

2004-10-28T01:56:00.000-07:00

My country... This one's really despicable, and the most worrisome thing done to a Republican that I've yet seen in the election run-up:

Representative Katherine Harris, Republican of Florida, and a group of supporters were almost hit by a speeding car on Tuesday evening, and the driver was charged on Wednesday with aggravated assault, the police said.

The driver, Barry M. Seltzer, 46, of Sarasota, told the police that he had been exercising "political expression."

Bystanders said a silver Cadillac sped through an intersection here and swerved onto the sidewalk. The car headed toward Ms. Harris before swerving and driving away, the police said. No one was injured.

Witnesses gave the car's license plate number to the police, who tracked it to Mr. Seltzer, a real estate investor and a registered Democrat. He went to the police station on Wednesday and said that Ms. Harris's supporters had been standing in the street, impeding traffic.

"I intimidated them with my car," Mr. Seltzer told the police. "I was exercising my political expression. I did not run them down."

Oh, why OK then... you just wanted them to think you were prepared to kill them. No problemo...

My Endorsement - John Kerry

2004-10-27T16:31:00.000-07:00

In another election, he might not get my vote. Though I do believe he's a good man and his biography is a testament to his commitment to the service of this country, I don't find him a particularly strong nor compelling politician. I think his manner of speech is genuinely incoherent, which is a poor quality in a leader. I believe his tendency to switch topics mid-sentence illuminates his reputation for indecisiveness - he's not simply an incoherent speaker - he's an incoherent thinker. Not all the time (as shown by his debate performance), but certainly by nature (as shown by his extemporizing). I look forward to a Kerry administration with a good deal of trepidation.

But I think he does bring certain strengths into office. It'd be a welcome sight to see the adults return to Washington. Given the talent pool he's likely to draw from, I expect we will see more pragmatists and fewer visionaries, which strikes me as a good thing. I think he brings a broader perspective than the current President. Unlike President Bush, Kerry understands that, though a good offense may score points, no team is likely to be a contender if it can't play well on both sides of the field. I trust he will make good on his word to invest resources into shoring up domestic security at home. Even his innate defensiveness could prove a virtue, focusing his attention on inconvenient issues that need to be addressed.

I expect he will be cautious, more cautious than I would like in world affairs. I don't expect him to confront our loathsome allies in the Middle East, despite the necessity of doing so. But a timorousness abroad may be exactly what we need if America is to "reload the guns" of its power - military, political, and moral. Our moral credibility is spent. The domestic consequences of supporting our policies and agendas has grown so severe in many countries that reflexive anti-Americanism has become a useful political strategy - for many of our allies as well as our enemies. Our military is over-extended and facing strategic setbacks at the hands of jihadists with rifles and home-made bombs. I do expect John Kerry to make some progress in restoring our "ammunition" in each of these respects.

Most importantly, though, I am voting to defeat George W. Bush. I was never happy with the manner in which he came to office, and would welcome a change of power in Washington for no other reason than to prove our democracy is still functioning properly.

But, my feelings are much stronger than that. Over the course of the last four years, I have watched George W. Bush's character unfold before the nation, and I have been repulsed by what I have seen. I'm tempted to recite the litany of petty indicators and grievances which mark me as a "Bush-hater," but I will limit myself to just one - his decision to taunt the Iraqi resistance to "bring 'em on." The audacity of a sitting President - probably the most physically secure man on the entire planet; guarded by batteries of the world's most professional officers and attended by batteries of the world's most competent physicians - jocularly enticing America's enemies to attack our troops speaks volumes about the character of this president. As they have indeed "brought 'em on" - and on and on by the thousands - the President has betrayed no remorse for having made light of the terrible consequences of his actions. Many times he's talked about the human costs of his decision to wage this war in Iraq. But he betrays his callousness each time he denies the truth of the mounting troubles in that country. I don't doubt he genuinely mourns for every fallen life and every wounded soldier. But I don't believe he genuinely feels responsible for them. I don't believe George W. Bush has the proper appreciation for the gravity of his office nor the consequences of his actions to hold the position of President of the United States.

On the level of policy, this President has disgraced my country, and thereby humiliated me, time and time again. His failure to realize his vow to capture Osama bin Laden "dead or alive" three years after the attack on the World Trade Center has made a mockery of United States power. To this day he continues to treat Afghanistan as a "victory" in the war on terror, despite obvious evidence that the enemy remains upon the field inflicting casualties on United States forces three years after the invasion. He prematurely declared victory in Iraq, again making our nation look like fools who fail to grasp the strategic nature of war, preferring short orgies of violence followed by shameless posturing to the measured and determined achievement of our goals by peace or by force. His overstatement of the case for war in Iraq has damaged American credibility, both at home and abroad. His decision to abandon a second Security Council resolution after vigorously pressing for it exposed America as a hypocrite on the importance of international law. His Administration's decision to hold American citizens for years without trial or charges, then release them without trial or charges when the Supreme Court ruled against this practice, has made a mockery of our respect for our own laws. The lawlessness of Abu Ghraib that stained America's honor, and the refusal to hold those most responsible - Secretary Rumsfeld - for allowing that lawlessness to develop is a colossal moral failing. To the extent that Bush's actions reflect upon all of us, he has caused me great shame as an American patriot.

Domestically, I feel Bush's fiscal profligacy has needlessly injured this country, constraining its ability to face both its apparent challenges and the unanticipated needs of the future. I find his endorsement of the Federal Marriage Amendment to our Constitution to be a monstrous act of cynicism aimed at one of America's most unfairly reviled minorities. The sneering disdain he expressed for Massachusetts at the debates strike me as an excellent example of his penchant for divisiveness - a willingness to carve Americans themselves into those who are "with us" and those who are "against us."

So, I will vote for Kerry next week. I may do so with some nervousness for the next four years. But I won't do so with even the slightest remorse.

Compare and Contrast

2004-10-26T19:15:00.000-07:00

War is a continuation of politics by other means - Clausewitz

Political Objectives - 4 Results:

"There can be no peace, in the President's opinion, if people use suicide bombings as a way to achieve their political objectives." - Ari Fleischer, April 1, 2002
"But obviously, it's another example of the kind of problem we've got with those who resort to terror to try achieve their political objectives as happened in that case" - Dick Cheney, September 7, 2004
"Is the President troubled at all that members of his own political party, at a time of war, days after Americans were killed in a terrorist attack in Saudi Arabia, would have the gall to use federal resources designed to protect the country against terrorists in order to pursue partisan political objectives?" - Reporter to Ari Fleisher, May 16, 2003

Military Objectives, 11 results:

"With new tactics and precision weapons, coalition forces demonstrated that we can achieve military objectives while directing violence away from civilians." - Declaration of Victory in Iraq, May 2, 2003
"Sometimes people say to me, well, you know, clarify the military objectives. There's no difficulty about doing that at all. It's al Qaeda and the terrorist network shut down, it's the Taliban regime out, it's a new regime in that is broad-based, and it's a decent future for the people of Afghanistan, based on some stability and progress, not based on a regime that oppresses its people, treats its people appallingly, is a threat to regional stability, and basically thrives on the drugs trade." - British Prime Minister, Tony Blair, November 7, 2001
"In addition to pursuing our nation's military objectives overseas, our Defense Department is making a critical contribution to protect our national citizens and infrastructure as well." - Tom Ridge, November 27, 2001
"I assured him exactly what I've been assuring the American people, that I've got the patience necessary to achieve our objective in the Afghan theater, and the objective is to bring the al Qaeda to justice, and to make sure that Afghanistan has got a stable form of government after we leave. I also told the Prime Minister that we're achieving our military objectives." - President Bush, November 9, 2001
"The Air Force's global reach enables us to project our power anywhere in the world within a matter of hours. Its new tactics and precision weapons help us achieve our military objectives while minimizing collateral damage." - Vice President Dick Cheney, September 17, 2003
"What's always important is in pursuit of the military objectives, as the United States does in Afghanistan, to always exercise every restraint to minimize those losses of life." - Ari Fleisher, July 23, 2002
"A war on terrorism has begun, and while there has been success in achieving specific military objectives, the shape and dimension of the subsequent phases of the campaign will remain a work in progress for some time to come." Defense Fact Sheet, August 17, 2004

Just a coincidentally observed difference of terminology...

One Week Out

2004-10-26T14:13:00.000-07:00

I've started monitoring the data on the race daily. I won't blog the daily results. But today is the first time I can remember that my method actually yielded a Kerry win. Don't read too much into it, as states like Ohio, Florida, and Wisconsin are orbiting around a margin of error, and when four states flip to a two-point advantage there's no statistical reason to believe that the candidate is winning.

But, nevertheless, the electoral college as it stands right now:

Strong Bush - 189; Weak Bush - 60; Total Bush - 249
Strong Kerry - 203; Weak Kerry - 86; Total Kerry - 289

Up Al Qa Qaa Creek

2004-10-26T10:22:00.000-07:00

Yesterday, in a briefing to reporters, Scott McClellan offered some defenses of the Administration on the al-Qa-Qaa matter which, if true, make for a pretty scary picture of this Administration's behavior. So, to look at the substance of McClellan's comments:

1) This issue is important: "When there are munitions missing, it's -- and we learn about it, it's always a priority. And as I pointed out, that's why we've already destroyed more than 243,000 munitions and have another nearly 363,000 on line to be destroyed. "

2) Bush reacted to it: "And the President wants to make sure that we get to the bottom of this. Now, the Pentagon, upon learning of this, directed the multinational forces and the Iraqi survey group to look into this matter, and that's what they are currently doing."

3) Bush didn't know until October 10th: "That's why I said, we were informed on October 15th. Condi Rice was informed days after that. This is all in the last, what, 10 days now."

4) The military did know or could/should have known sooner: "So -- and obviously there is an effort to go and secure these sites. The Department of Defense can talk to you about -- because they did go in and look at this site and look to see whether or not there were weapons of mass destruction there. So you need to talk to Department of Defense, because I think that would clarify that for you and set that record straight"

5) The military did not tell George Bush: "Well, the Iraqi government told the International Atomic Energy Agency on October 10th that these munitions or these high explosives were missing, because of looting that occurred sometime after April 9th, 2003... The IAEA informed the U.S. mission in Vienna first. And then -- and then, as I said, Condi was informed days after that and she informed the President."

This scenario really bothers me, because it would indicate that the Commander-in-Chief of the U.S. Armed Forces isn't receiving important information needed to make the command decisions. Whether the munitions were looted before April 9th of 2003 or shortly thereafter, any operation which was able to "loot" 380 TONS of explosive materials would have to be of a size, scale, and sophistication to be obviously worrisome from a strategic point of view. If the President wasn't even informed that operations of this magnitude were being conducted during the war or its aftermath, then the only conclusion possible would be that his own military was misleading the President about the nature of the insurgency it was faced with. Such a datum as the events at Al Qa Qaa should, at the very least, have provided evidence that preparations were underway for a large-scale and widespread insurgency with some kind of high-level command-and-control capacity. That the interrogations of Abu Ghraib, for instance, yielded no clues as to the looters of 380 tons of munitions, nor their whereabouts, would further indicate a failure to make serious progress against enemies whose presence and operations could be reasonably deduced simply by looking at the operation at this facility.

Listening to the "generals on the ground" is all well and good, but that doesn't absolve Bush of his duties as Commander-in-Chief. And if those "generals on the ground" are suppressing information that the Commander-in-Chief needs to hear in order to make informed decisions, then there is a catastrophic breakdown in the chain of command.

The Case Against Kerry

2004-10-25T22:51:00.000-07:00

I recommend watching the full thing:
Click Here

The Other Election

2004-10-25T21:33:00.000-07:00

Don't forget to cast your vote

Registration Numbers - Colorado

2004-10-25T13:27:00.000-07:00

The voter registration breakdowns for Colorado are an unsightly mess but here's the skinny:
Democrats: 936,496
Republicans: 1,114,576
Unaffiliated: 1,001,752
Third-Party: 12,403

No wonder its such a tight race. Unlike Nevada, where registered independents are about one third the number of registered partisans, in Colorado the unaligned represent a full third of the electorate. I can't determine what the registration picture looked like in November of But in Colorado's case, Kerry can win the state with a lead among independents. The necessary size of that lead will naturally depend on Democratic turnout.

Registration Numbers - Nevada

2004-10-25T11:21:00.000-07:00

Here's how the voter registration picture looks in the state of Nevada. In January of 2000 the registration picture was:
Democrats: 380,302
Republicans: 379,302
Non-Partisan: 130,072
Third-Party: 26,861

By October of 2000 the picture had changed to:
Democrats: 365,593
Republicans: 366,431
Non-Partisan: 122,339
Third-Party: 24,607

Final votes for candidates in 2000 broke down as follows:
Democrat: 279,978
Republican: 301,575
Third-Party: 27,417

Here's the breakdown for January 2004:
Democrats: 339,503
Republicans: 352,730
Non-Partisan: 128,039
Third-Party: 26,215

And here it is for October 2004:
Democrats: 429,808
Republicans: 434,239
Non-Partisan: 161,620
Third-Party: 45,434

In 2000, the number of registered voters in each party declined over the course of the year. In contrast, in 2004, the number of registered voters has spiked dramatically for all parties. This indicates that the turnout is going to be quite high. Democrats failed to best the Republicans in the registration game despite an intense effort. Given the generally higher turnout rate of Republicans and Bush's comparatively stronger support amongst his own party, it's gonna' be a tough fight in Nevada. If non-partisan voters break significantly in Kerry's favor, he might squeak over the top. But recent polls suggest its unlikely.

Responding to a Reader

2004-10-25T10:49:00.000-07:00

Reader Shahn Hogan comments:

Um, why on earth would you go to vote and NOT bring multiple forms of identification. These requirements are mailed to all registered voters weeks before the election.

I'm not sure whether Shahn has ever voted before. If he has, I'm sure he realizes that "multiple forms of identification" are not required to vote and never have been. To register, one must be an American citizen. To vote, one must be registered. That's it. There is no requirement that you have a driver's license or a credit card or a passport. Citizenship is the only requirement.

My fears.

2004-10-24T23:12:00.000-07:00

OK. So, I'm a partisan Democrat. Republicans worry about mobs of dead people showing up to the poll. I worry about stuff like this:

By requiring identification only from newcomers who haven't visited the county clerk's office, hava entrusts local election officials to decide whether voters are who they claim to be. And it ultimately protects voters by telling states to set up rules for counting provisional ballots. "Hava does not require identification in order to have a vote counted," says Wendy Weiser, a lawyer with New York University's Brennan Center for Justice. But many Republican election officials are conducting this year's vote as if it does.

The article raises some distressing questions about the way in which HAVA may be used to demand photo ID of ALL voters at the polling place, thus preventing legitimately registered voters even those who are not newly registered from voting. It even comes with examples of Colorado Democrat voters who have been prevented from voting. Most worrisome graf:

Around the country, GOP officials are downplaying or ignoring hava's voter protections. South Carolina's election workers' manual--authorized by the state elections commission, which is chaired by a Republican--contradicts hava's provisional ballot requirements. "If a person presents himself ... without a valid [photo ID or registration certificate]," it says, "he/she should not be allowed to vote." In Colorado, where the chief election officer is also a Republican, the new voter registration form lists a driver's license or state-issued ID number as "required," even though the law allows other documents. And, in Bond's home state of Missouri, the law lets partisan poll workers waive ID requirements. It requires documents from "some government agency" or a post-secondary school at the polling place. (Poorer people are less likely to attend college.) But, if Ashcroft leaves his wallet in the car, he'll have no hassle. "Personal knowledge of the voter by two supervisory election judges is acceptable voter identification," says the law. Hypothetically, partisan election judges could waive in voters from their own party whom they "recognize," while barring others from the polling place.

Friday Horse Race

2004-10-22T13:15:00.000-07:00

The penultimate edition....

I'm starting to think that TradeSports is an illustration of the fundmental foolishness of markets. But hey, that's just me. Bush's chances escalated sharply over the week, and the Bush Index (price of once contract in all 50 states) climbed back above 3,000. It presently stands at 3055.9. It's not that I think the market is wrong, but based on polling data, several close-call states seem radically overvalued - especially Colorado and Ohio. But we'll see. Here's the electoral outlook of the traders:

Odds

Bush: Strong - 254; Weak - 37; Total - 291
Kerry: Strong - 238; Weak - 9; Total - 247

Meanwhile, the race is turning into a nail-biter across the country if the polls are to be believed. In my projected popular vote, Bush is leading by about 800,000 votes. He is registering a slight edge in a broad number of states, but with the loss of Ohio he's only holding the electoral college by a slim majority. If early accounts of voter registrations are accurate, this doesn't bode well for Bush - as early evidence indicates there will be a number of new voters who don't appear in the polls. But don't pay any mind to my aspirational ramblings. If we just stick to the data at hand, here's the picture today:

Polls

Bush: Strong - 178; Weak - 98; Total - 276
Kerry: Strong - 186; Weak - 76; Total - 262

Notice, under this scenario, if you assume that green states break for Kerry (on the assumption that the challenger will do better among the undecideds), then Bush is the one skating on super-thin ice. The only states he can afford to lose are New Mexico, West Virginia and Nevada in this scenario. If he loses two of them, its over. Loses Iowa alone it's a tie. Anything else, it's Kerry's win.

If, on the other hand, you assume that remaining undecideds will skew towards Bush, then this race is already over.

Mystery Solved

2004-10-22T10:12:00.000-07:00

Regarding the questionable registration of college kids in Florida, at any rate.

Here's the story:

Local elections officials said suspicious registration forms and questionable tactics also have been coming from a group working in Florida for the Republican National Committee. That group, Sacramento-based Arno Political Consultants, also is pledging to cooperate with investigators.

The company was hired for $136,000 to boost the number of registered Republicans in Florida. Owner Bill Arno said the work was conducted by a subcontractor who worked ``at an arms length.'' The subcontractor, Mark Jacoby, a California man who travels the county fulfilling voter registration contracts, did not return repeated calls seeking comment. His assignments took him to the Gainesville and Tampa areas. Arno insists his subcontractor did not operate fraudulently.

So, it appears the RNC may have hired someone to "boost Republican registration" and thus we find people with fake petitions re-registering college students as Republicans. Not to alter the numbers in the state - just to fulfill the terms of a contract. Petty enough for plausibility.

However, the consequences can nevertheless be quite severe:

Elections supervisors said the alleged scams could disenfranchise many students who are newly registered in their college counties but have already received absentee ballots from the counties of their permanent residence. If these students now submit the absentee ballot, supervisors will be forced to throw it out because only the most recent registration is active.

Crow Before Dinner

2004-10-21T15:42:00.000-07:00

Well, if you remember, after the third debate, yours truly, amiable amateurish pundit, declared:

Kerry's contesting the Catholic vote. And quite frankly, I don't think Bush OR Rove have fully appreciated the difference between a traditionalist Catholic and a traditionalist evangelical Protestant. Bush's rhetoric seems custom-designed to alienate conservative Catholics. We'll know in less than a month whether I'm right on that, but my guess is that Kerry is going to crush Bush in the Catholic vote. Most Catholics know how difficult it is to square the religious positions of the Catholic Church with the civic obligations of an American citizen. Bush is unwarrantedly disdainful of that kind of "nuance." I can't say what a WASP in Atlanta will hear in that debate... but I suspect a Catholic in Atlanta is going to have second thoughts about Bush.

So, check out this article:

A Pew Research Center poll released Wednesday has Kerry winning among white Catholics 50%-43%--a huge change from the October 3 poll which had Bush leading 49% to 33%.

By comparison, George Bush beat Al Gore among white Catholics by about seven points.

An October 14 ABC News poll showed a similar dramatic shift.

Kerry's favorable vs. unfavorable rating among white Catholics before the debates was 36% vs. 50%. After the debate: 50% vs. 41%. Kerry improved across the board, but the shift was more stark for white Catholics than just about any other group the poll measured. (By comparison, his standing among women improved from 41% favorable vs. 42% unfavorable up to 53% vs. 38% after the debate.)

In both cases, the improvement seemed to come from undecided Catholics choosing Kerry, not Bush Catholics switching.

Neither poll teases out the causes for this, but in both cases the shift happened after the second and third presidential debates. It was in the third debate that Kerry had his most expansive declaration of his personal faith.

Sorry to brag, but it's nice to get at least one right... oh, and I find it interesting.

What's the deal?

2004-10-20T22:02:00.000-07:00

OK. Once is weird. Twice is strange. Thrice? Unacceptable. And worst, I haven't a clue of why. Here's the story:

Oregon: "Students passing through the Park Blocks yesterday afternoon were shocked to discover that a group of petitioners may have misled them into changing their party affiliation to Republican on their voter registration."
Pennsylvania: "Students who signed a petition that was being circulated last month on the Blue Bell campus to legalize marijuana for primarily medicinal purposes have now learned they were registered as Republicans"
Florida: "Students at the University of Central Florida and two community colleges claim they were duped into switching their party affiliations from Democrat to Republican, campus police officials said Tuesday."

Anybody got any good conspiracy theories on WHY there might be an effort in swing states to deceptively register college students as Republicans? I'll accept any and all theories, and skullduggery by either party (or any third party) if it offers even a remotely plausible account for this behavior.

What's Wrong with Andrew Sullivan?

2004-10-20T13:06:00.000-07:00

I confess, I've been reading him lately. I was really disgusted by his charge immediately after 9/11 that the "decadent left" (which he identified as America's coastal states) was going to pose a "fifth-column" to our efforts in Afghanistan. It still rankles as one of the most despicable sentiments ever issued by a pundit.

But, he's a smart guy, keeps writing for publications I read regularly, and represents an interesting combination of stances.

But then, sometimes... he's super creepy.

THE BEST LINE: Well, there are many in "Team America," which I saw again last night. (Hey, it's the only thing keeping me optimistic these days.) But my favorite was Susan Sarandon's last words, before she is hurled over a balcony and smashes into bloody little bits on the ground (yes, the scene drew cheers in the movie theater both times). Her last words to "Team America" are the classic Fonda-esque: "You will die a peasant's death." You just know she reads the Nation.

I have every intention of seeing Team America and expect I'll enjoy it. But that closing comment (in boldface) really seems to speak to the disconcerting part of him. What does it mean?

Does it mean that he relishes the fictional dramatization of Susan Sarandon's violent death because he believes she is in reality a Nation reader?

Does it mean that he believes Nation readers (of which I'm an almost always disapproving one) are all stuck-up assholes?

Does it mean what it seems at first to mean - that this representation of Susan Sarandon somehow validates his imperssion of who she is as a person?

I don't get it. But sometimes this guy strikes me as one loose bolt away from Coulter...

Fun with Baldness

2004-10-20T11:00:00.000-07:00

Operation Clark County

2004-10-19T01:02:00.000-07:00

An email from me, sent to the UK Guardian, responding to their Operation Clark County:

What an unfortunate decision on the part of your paper to launch this letter writing campaign! I have no doubt that your hearts are in the right place, but surely you must realize how patronizing this entire endeavor is. Just looking at the sampling of "prominent" letter writers, the condescension and exagerration oozes off the page.

John LeCarre: "While Bush was waging his father's war at your expense, he was also ruining your country."

Now, I'm a liberal and will be casting my vote for John Kerry. But an American with eyes in their head can see when an accusation outruns the available facts. Bush hasn't been good for this country, but no sincere American patriot is likely to agree that he's "ruined" us, nor that the normal exercise of our democratic process would lead to our "ruination" - even if it leads to another four years of Bush.

Antonia Fraser offers another slap in the face of an American patriot with her charge "if you back Kerry, you will be voting against a savage militaristic foreign policy of pre-emptive killing which has stained the great name of the US so hideously in recent times." Certainly, Bush's policies since he's taken office have embarrassed many of us Americans tremendously. But at the risk of pointing fingers here... our largest such "stain" is an occupation of Iraq done in alliance with... well, your country. Many Americans are willing to say that the war in Iraq was a mistake, and in many ways a disaster. But again, it is possible to overstate the case. Ms. Fraser offers an excellent template for doing so.

It's certainly gracious of Richard Dawkins to concede that our President's flawed character "doesn't justify an assassination attempt." But with roughly half of Americans inclined to vote for him and a substantially larger number ambivalent about his character, calling the President of our Republic a "sly, mendacious and vindictive" "idiot" isn't likely to win many friends in Ohio.

What really hurts me, as an American liberal, is my knowledge of how counter-productive this entire endeavor is. Liberal and Conservative, we are above all Americans, and as nasty as our partisan intramural politics might get, it does not change that fundamental fact. I imagine the likelihood of these letters swaying an undecided American voter is quite slim, though if one were to do so, I fear it would have an unintended effect of provoking the famous American stubborn streak (which, I'm told, we've inherited from our British ancestors).

The people of Britain are no shrinking violets in world affairs. Despite our feared "unilateralism", President Bush would never have possessed the political capital or credibility to launch his invasion of Iraq without the support of your Prime Minister, Tony Blair.

I humbly suggest that if you are concerned with making your impact felt, you turn your efforts closer to home. Like us, you live in a democratic society and have tremendous power as citizens. Those of us on "this side of the lake" have our own efforts to attend to. When we go to cast our ballots on November 2nd we will be forced to consider a wide range of factors - from how we shall face our domestic political challenges, to how our nation shall conduct itself on the world stage.

Most American citizens are aware that we have inherited an obligation towards the world larger than that of most foreign nationals. It is a consequence of history that American force is presently arrayed across the globe - more often than not, at the invitation of nations which have sought the protection we can bestow. American forces are on the front lines of, or prepared to intervene in, dozens of global flashpoints - Bosnia, Kosovo, Iraq, Taiwan, the Korean peninsula, Japan, Germany, Eastern Europe. It's a tremendous responsibility and none of us have asked to inherit it. It may even well be true that we often do a poor job of living up to this responsibility (though some of us take pride that our empire is at least far less rapacious and far more humanely idealistic than other recent global empires we might name), but our responsibility remains. Throughout our history, the proper conduct of foreign affairs has been a source of vigorous debate, and this is one of those years where this issue is especially prominent. But we, as Americans, trust that our democratic process will yield the best result we can hope for - one based upon the outcome of a fair election conducted after vigorous debate.

The United States of America are our Republic, and this Republic is our responsibility. Though your opinion is welcome, your efforts to lobby individual voters will strike most Americans as incredibly rude. It certainly strike me as inappropriate. I hope you and your readers will consider channeling your admirable zeal into your own political system, where it is far more likely to have a beneficial effect. This misguided effort is unlikely to do anyone much good.

Sullivan makes a fair point

2004-10-18T22:29:00.000-07:00

Here:

It does strike me as astounding that in four debates lasting six hours, the horrors of Abu Ghraib were never mentioned.

That was a failure of the moderators, wasn't it?

Didj'a catch Jon Stewart?

2004-10-18T18:46:00.000-07:00

No? Well then, the following link is to a video clip:
Link

Whether you agree with Jon or not, it's good watching for any who enjoy rhetorical bloodsport.

Support the Troops?

2004-10-17T23:54:00.000-07:00

Taking a look through Stars & Stripes, I found this article on a pending DoD rule barring the use of prostitutes by servicemembers. According to the article:

The Pentagon wants to add to the UCMJ a charge specifically addressing prostitution, and affixing a maximum punishment of one year of confinement and a dishonorable discharge for anyone convicted of paying a prostitute for sex.

A few days later, this article was followed by one summarizing the reactions of U.S. troops to this looming policy change:

Troops stationed in Germany are seeing red over the Pentagon’s proposal to add an anti-prostitution charge to the Uniform Code of Military Justice, and it’s not just the glow from the local red light district. Military personnel and their families on Rhein Main Air Base, only minutes from one of the largest red light districts in the world, are angered by the Department of Defense announcement to change the UCMJ. Those interviewed largely agree that Germany is not the place to enforce such a law.

Further surveys of troop opinions were offered, here and here

Most intriguing is the firestorm of controversy this has unleashed in the Letters Pages.

For example, one soldier, based in Kuwait writes:

I am disturbed by the severity of the proposed anti-prostitution law as described in “DOD: Soliciting prostitute could end career” (Sept. 23), and that so many people agree with it because they feel prostitution is “morally wrong.” ... I think the Department of Defense really needs to reconsider this issue, and the gray areas in it, before the first freedom-loving GI’s life is destroyed by it.

Another, stationed in Okinawa, complains, "As if it’s not bad enough that we are already the laughingstock of the world for our puritanical views on sex, now someone feels the need to reinforce these beliefs with a new rule!" A former Air Force soldier now working as a contractor in Japan worries "I really don’t like the way this law (or rule) is headed. The change in policy by the extreme conservative minority seems to be the start to a whole series of rules to come."

One soldier, stationed in Okinawa wrote in to support the proposed rule, arguing:

An airman’s comment that “if it’s illegal in the United States, then it should be illegal for the U.S. military” is right on. However, it’s more than an issue of legality: It’s an issue of morality. It is illegal to engage in prostitution because sex outside of marriage is wrong, much less sex engaged in for profit and/or recreation — not to mention against Christian principles and God’s law. The overwhelming majority of Americans profess to be Christians, and yet, to even consider prostitution as situationally acceptable is in direct violation of the basic tenets of Christianity.

Another soldier agrees, asserting "I was appalled after reading a letter to the editor to find out there are Americans who think they can do whatever they want and be justified. Prostitution is not only illegal, it is also immoral and degrading to the men who purchase sex and the women who sell it."

In contrast, a long-time soldier writes: "OK, enough is enough. As a member of the Army for 13 years, I have seen some rather stupid rules and regulations. Do we really need this type of regulation [against prostitution]?"

One airman stationed in Japan tactfully asserts: "Making a law against prostitution part of the Uniform Code of Military Justice is a little too personal. If this new law is implemented, you are adding and compounding problems. They’re demanding too much and the punishments will be too harsh."

One soldier colorfully notes:

When I read the article about the proposed ban on soldiers contracting prostitutes (“DOD: Soliciting prostitute should end career,” Sept. 23), I almost fell off my chair. Who could think of such a thing with a straight face?

An interesting debate...

Cheap? Sure...

2004-10-16T02:00:00.000-07:00

OK. To be clear, I'm not endorsing this point of view, and I think it's the kind of speculation that wildly outruns any factual basis for believing it. But I'd recommend checking out this video clip comparing Bush's 1994 debate with his 2004 debates. Even though the premise - that it indicates Bush is suffering from presenile dementia - is absurd, the raw footage is interesting.

Shame

2004-10-16T01:55:00.000-07:00

I once had an argument with one of my friends (not a U.S. citizen) about the relative difference between Iraqi prisons and American prisons. Naturally, I was of the opinion that our prisons, for all their faults, were still far from the level of unconscionable action of Iraq, and cited as an example the use of anal rape of prisoners by Saddam. To which he replied, "well, anal rape happens all the time in U.S. prisons."

I objected - that there wasn't evidence that it was done to such level, and at any rate, it wasn't an instrument of prison policy. In one of those sobering moments that happens to me from time to time, he simply stated (to paraphrase), "Geoff, get real. You Americans JOKE about prison rape. You all know it happens, and make no bones about it. Of course it's American policy. Americans endorse, or jokingly tolerate, prison rape so that people will try to avoid prison. These are PRISONS - these people use the bathroom on a schedule, and you seriously believe they can't prevent systematic prison rape?"

My skin's crawled every time I've heard a "Bubba" joke since. It was a humbling point.

Which brings up back to today's NY Times article:

Under the protocols of the prison gangs at Allred, gay prisoners must take women's names. Then they are assigned to one of the gangs.

"The Crips already had a homosexual that was with them," Mr. Johnson explained. "The Gangster Disciples, from what I understand, hadn't had a homosexual under them in a while. So that's why I was automatically, like, given to them."

According to court papers and his own detailed account, the Gangster Disciples and then other gangs treated Mr. Johnson as a sex slave. They bought and sold him, and they rented him out. Some sex acts cost $5, others $10.

Last month, a federal appeals court allowed a civil rights lawsuit that Mr. Johnson has filed against prison officials to go to trial. The ruling, the first to acknowledge the equal protection rights of homosexuals abused in prison, said the evidence in the case was "horrific."
...
Mr. Johnson's suit says he begged prison officials to move him to a unit called safekeeping, where white and Hispanic homosexuals, former gang members and convicted police officers lived. He asked seven times, in writing.

The officials did nothing, saying Mr. Johnson's claims could not be corroborated. At prison hearings, Mr. Johnson said, officials would take pleasure in his plight. They suggested that he was enjoying the rapes, he said.

Mr. Johnson said they told him he had two choices. One was to fight. The other was to engage in sex. The officials deny they mishandled the complaints and the ugly comments attributed to them.

Carl Reynolds, the general counsel of the Texas Department of Criminal Justice, which runs the Texas prisons, said Mr. Johnson's complaints were properly handled.

"These allegations were investigated by the internal affairs branch of our agency," he said. "There seems to have been a lot of doubt about his motives and his ability to present evidence."

You know, I really do believe this is an ongoing human rights catastrophe which puts a really dark stain on this nation's soul...

This is seriously creepy.

2004-10-15T23:53:00.000-07:00

A memo sent to MTV's Rock the Vote by Ed Gillespie, chairman of the Republican National Committee (emphasis added):

It has been brought to the attention of the Republican National Committee - and was confirmed in the Los Angeles Times yesterday - that your organization is sponsoring and promoting a false and misleading Internet campaign designed to scare America's youth into believing that they may be drafted to serve in the military.

Int he Times article your Political Director said, "I don't see why candidates get to talk about war all day long and we can't talk about a draft." Yet, as you must be aware, this urban myth regarding a draft has been thoroughly debunked by no less than the President of the United States, who explicitly stated, "We don't need the draft. Look, the all-volunteer Army is working...," as well as the Vice President, who explained, "And the notion that somebody's peddling out there that there is a secret plan to reinstitute the draft, hogwash, not true." Additionally, the Secretary of Defense, "heatedly, denied yesterday that the military plans to bring back the draft and boost reserves and National Guard callups after the November election.'That is aboslute nonsense,' Rumsfeld told the Senate Armed Services Committee. 'It's absolutely false that anyone in this administration is considering reinstituting the draft."

In light of the above statements, the only conclusion to be drawn is that your Rock the Vote "Draft Your Friends" campaign is being conducting [sic] with malicious intent and a reckless disregard for the truth. As a "non-partisan" organization that enjoys the benefits of being formed under §501(c)(3) of the Internal Revenue Code, you have an obligation to immediately cease and desist from promoting or conducting your "Draft" campaign.

The Republican National Committee shares the goal of your organization to encourage voter registration and "empower young people to change the world." ...We've found younger votes care about the same issues that older Americans care about; winning the War on Terror, creating jobs, improving our public schools, making health care more affordable, etc.

It is unfortunate that you feel the need to engage in a misinformation campaign regarding an alleged draft to energize young voters. This is the sort of malicious political deception that is likely to increase voter cynicism and in fact decrease the youth vote, as well as raising serious legal issues regarding the political motivations of your efforts.

It's hard to find a way to comment on this letter without sounding... uh... "shrill." I'd like to think that it's just universally obvious to Americans why we don't think it's kosher for politicians to intimidate private organizations and accuse them of near treason for merely discussing issues. I find it particularly galling that the memo's logic rests upon the "thorough debunk[ing]" of our President - as if skepticism towards Bush should be an actionable offense.

But hey, I strive to be fair. So, let's go visit Rock the Vote and see what they're saying that's so "malicious":

A NEW MILITARY DRAFT?

It's on everyone's lips. And it directly affects YOU.

There's no question about it: the United States military is being stretched thin. Our Armed Forces are not only on active duty in Iraq and Afghanistan, but also in some areas of the former Soviet Union, South Korea and Europe.

At a hearing of the Senate Foreign Relations Committee last week about post-occupation Iraq, Senator Chuck Hagel (R-NE) thrust the issue of reinstituting a military draft right into the public debate. "There's not an American ... that doesn't understand what we are engaged in today and what the prospects are for the future. Why shouldn't we ask all of our citizens to bear some responsibility and pay some price?" The Senator went further and argued that restoring compulsory military service would force "our citizens to understand the intensity and depth of challenges we face."

The Nebraska Republican added, "those who are serving today and dying today are the middle class and lower middle class." The draft, he argues, would spread the responsibility of military service in Iraq equally among all Americans.

Senator Hagel's remarks come on the heels of statements by both the U.S. General in charge of American forces in Iraq, General John Abizaid, as well as Senator John McCain (R-AZ), who are insisting that the United States needs more soldiers to help with the situation in Iraq.

These leaders are not the only ones talking about the looming personnel crisis in our military. Options that don't include a draft have also been presented by other members of Congress, including a proposal by Sen. Olympia Snowe (R-ME) to move forces that are currently stationed in Europe to Iraq.

The push to reinstate the draft is not a one party issue. It has support from both Republicans and Democrats alike. Congressman Charles Rangel (D-NY), a prominent African American leader, has been a long time supporter of reinstating a draft. "As a veteran, I strongly believe that fighting for our country must be fairly shared by all racial and economic groups. Nobody wants to go to war, but the burden of service cannot fall only on volunteers who, no matter how patriotic, are attracted to the military for financial reasons."

Why all of the sudden is there interest by politicians in the draft?

These recent statements stem from a growing belief that the U.S. government's original plan to scale back our military presence in Iraq by this summer will be stalled by the continuing difficulties there. Despite the President's promised June 30 th deadline to give back control of Iraq's government to the Iraqis under the United Nations, it's not clear under the current state of affairs when our military role there will begin to wind down even if we hand over power on time.

Why all of the sudden, should YOU be interested in the draft?

You are the generation of Americans that would be drafted into military duty, not the politicians talking about it. And so we ask you. Do you think the draft is FAIR? Our country was a different place in the 1970's, when the last draft occurred. We have new factors to consider in 2004:

In 2004, women serve in the military--many have died in Iraq. Back in the day, women were not drafted. Should women be drafted today?
In 2004, its "don't ask, don't tell." The military's policy towards homosexuals in the military prevents them from serving openly. Should the military discharge draftees who indicate their sexual orientation when asked to serve?
In 2004, nearly two-thirds of high school graduates are enrolling in college. During the last draft, this number was lower and college students could defer the draft in order to finish school. With more draft eligible people attending college, should the United States continue that policy?

Some things to think about.

Now, let's leave aside questions of whether this is somehow less extreme than something to which Gillespie is responding to. After all, he's allegedly responding to an LA Times Article (at the time of this posting, the LA Times website was down) in which the offensive comment was, to quote Gillespie "I don't see why candidates get to talk about war all day long and we can't talk about a draft."

His response? You can't talk about the draft, because the President says it won't happen. Never mind that the campaign is about voter registration... which last I checked had the potential to impact more races than just the President's... and despite the very real record of public debate by elected officials on the merits of the draft, including even a floor vote on the issue.

What Gillespie seems to be saying is, "don't talk about this issue, because young people don't care about it, and the President rules it out. And you may face legal consequences if you continue to discuss it."

What I don't hear Gillespie saying, which would seem to give him a point I could at least respect is - "your campaign is misrepresenting the President's position and creating a false impression that he supports instituting a draft." If that were the case, I could see how Gillespie's concern and threat were warranted. But he's simply saying don't talk about this. It could hurt the President.

I find that despicable.

Friday Horse Race

2004-10-15T23:09:00.000-07:00

Not much new to report.

In the Tradesports exchange, Bush is slightly lower than last week. The Bush Industrial Average (the price of one contract in every state) stands at 2953.6, about a 30 point drop since last week. Kerry's position has improved but it has more to do if Kerry's going to have a chance:

Odds

Bush: Strong - 254; Weak - 30; Total - 284
Kerry: Strong - 243; Weak - 4; Total - 247
Tied: Iowa (7)

In the averaged polls, Bush's lead slipped some more, with his lead in the projected popular vote falling to 1.25 million. Bush is still winning the electoral college handily, but those swing states are starting to spin on their pivots.

Polls

Bush: Strong - 206; Weak - 83; Total - 289
Kerry: Strong - 196; Weak - 53; Total - 249

Mary Cheney's Privacy

2004-10-14T19:28:00.000-07:00

I hate to see so many people of so much integrity giving a pass to what can only be considered gay baiting. Mary Cheney doesn't have to wear the weight of the world on her shoulders, and nothing Dick Cheney has stated justifies the way that family is being treated. Some more evidence for presuming bad motives on the part of Kerry & Edwards:

August, 2004: "As for Mary refusing to be questioned about her sexual identity, she is not obliged to do so. Nor is she obliged to be a gay rights activist just because she's gay. Her responsibility to the campaign is to support her father - nothing more and nothing less"
February, 2004: Now that Mary, 34, is a senior campaign official, the Web site hopes to shame her back into the spotlight. Still, the effort's ultimate target isn't Mary but her dad's boss. This week they plan an e-mail ad picturing Mary's face on a milk carton. HAVE YOU SEEN ME? it asks
September, 2000: The position that Mary Cheney finds herself in is hardly unique. Other gay and lesbian children of conservative politicians—from Chastity Bono to Dee Mosbacher—have had to strike a balance between relationships with their families and belief in gay rights. Do one’s loyalties lie on one side, the other, or somehow on both? The same tension has played itself out across thousands of dining tables in families without famous politicians at the head of them.
September, 2004: "The absence on stage of Mary Cheney followed a series of attacks on her and the Vice President by Illinois Republican Alan Keyes. The Senate hopeful called Mary a "sinner" and a a "selfish hedonist." "
This is just funny: Hard-hitting reporting on Mary Cheney's efforts to get into Baghdad before the Iraq war as a human shield: "American Vice-president Dick Cheney would soon come to the Jordan capital to "give a lecture" to the daughter"
August, 2004: "A host of influential social conservatives dropped their collective jaw, with Richard Land of the Southern Baptist Convention saying, "If it were Cheney running for president, it would guarantee the defeat of the Republican ticket"
July, 2004: Yet the crushing July 12 defeat of FMA in the Senate -- and the critical role the Cheney family played in it -- warrants a second look at Mary Cheney's political acumen and courage. By avoiding a public spat with her father and playing the insider's role of the loyal opposition, she may have helped bring down an amendment that proposes to write anti-gay animus into the nation's founding document.
September, 2004: "It's disappointing - but not surprising that a father would stand up for his daughter," agreed Georgene Rice, spokeswoman for the Defense of Marriage Coalition, the group backing Constitutional Amendment 36. Party leaders described the issue as too private for public debate. "His family situation involving his daughter is very personal and if you ask me, it's nobody's business. Parents don't get to decide the lifestyle of their children," said Kevin Mannix, chairman of Oregon's Republican Party. ... While Republicans are playing down the issues raised by Mary Cheney's presence in a party which opposes gay marriage, proponents have cited her as a weak link in the Republican's conservative armor. Nationally, gay rights groups have attempted to use Mary Cheney as a lever against her conservative father
February, 2001: "it’s unlikely that she will make any public statements about the Administration’s positions on gay and lesbian issues—partly, said Witeck, because “activism is just not part of her complexion"
August, 2004: "If Ms. Cheney was gratified by his remarks about gay marriage, she has not let it show, two campaign aides said. But aides say she was clearly displeased the next day to find the cameras of the traveling press corps craning for shots of her face. "She does not seek the limelight," said Mary Matalin, an adviser to Mr. Cheney and friend of the family."
June, 2004: "A new Internet ad campaign launched on Monday targets US Vice President Dick Cheney's lesbian daughter Mary and her silence about the Bush administration's support for the proposed constitutional amendment to ban same-sex marriage."
October, 2004:"Mary Cheney has been a controversial figure, both within the Republican party (for being openly gay) and within the gay community (for being openly Republican, and not the Log Cabin kind). She has been unable to escape the public eye despite repeated attempts to keep a low profile, and her sexuality seems to be a lightning rod for both Democrats and Republicans, as evidenced by conservative Illinois Republican Alan Keyes's recent description of Mary Cheney as "a selfish hedonist" on a radio talk show."
Premeditated Gaybaiting:On August 26 Democratic vice presidential candidate John Edwards took Cheney to task on the gay marriage issue using unusually harsh words at a Colorado forum that included undecided voters. Edwards, responding to a question about the Democratic ticket’s stance on civil unions, referenced Cheney’s remarks by noting that “the vice president disagrees with the president on this.” Then referring to Cheney, Edwards said sarcastically “Somebody forgot to tell him what he was supposed to say I guess.”
October, 2000: "The Cheneys repeated their assertion that Mary's sexual orientation was a private family matter. When pressed, candidate Cheney was adamant. "I'm simply not going to discuss that aspect of Mary's life," Mr. Cheney said of his daughter"
DearMary.Com. Too despicable to merit comment.

Letter to Sullivan

2004-10-14T19:01:00.000-07:00

Look, Andrew. I don't know what your story is with your family, but family gets REALLY complicated. And I'm sure it gets even more complicated when your conservative Christian Republican father starts going "off-reservation" in front of Republican donors about his opinions on your right to get married. You're a gay dude, you KNOW that Mary Cheney's been catching shit within our community for "disappearing" lately. And I'm pretty sure you DO know that this "disappearance" has had something to do with the damage that Cheney's relationship with his daughter was having on his career prospects. The Dems are trying to draw this out, and they're trying to draw it out because they know exactly how uncomfortable it makes Cheney. This article today articulates what I've been trying to tell people more elegantly than I've managed to say it myself, while identifying something going on in OUR community that's been bothering me for months (years in some cases):

-------------------

But then, at the Republican National Convention last month, Mary held her own National Going-Back-In Day. Whether by personal choice or out of family pressure, she did not appear on stage with the rest of the Cheneys after the vice-presidential acceptance speech, or with the Bushes during the closing moments of the convention. And my guess is that even if Mary "had" taken her rightful place onstage, it would have been without her partner.

For this, Mary Cheney has been pilloried, even though gay people are in comparable situations all the time across America. The big difference is that our fathers aren't vice president, and our family dramas aren't nationally televised. Consider, however, the times you've been asked by a family member to be "discreet" - say, when your father bemoaned your plans to march in the local gay-rights parade, because his boss might see you on the TV news; or when your mother asked you not to complain because your same-sex partner wasn't invited to a family wedding.

In a strange way, we have more in common with Mary Cheney than we would like to think. Maybe that's why we all love to hate her so much, because she "is" us

-----------------------------
I've very much appreciated your standing up against the bullies in DC who are trying to destroy the careers of gay Republicans. It shocks me to see you adopting such a double standard to the attempts of a gay person to BALANCE the consequences of their orientation with their efforts to accomplish their agenda.

This comment didn't fall out of the sky without a context. Cheney did openly acknowledge his gay daughter back in August, and he's caught a lot of shit for it. If Kerry's comment was sincerely motivated by a sense that it's just so perfectly normal in this world that one can mention such a thing completely off the cuff, that'd be one thing. But the comment is dropped in a context of Kerry trying to highlight an element of Cheney's private family life that he has been trying to downplay.

It's true that Cheney's love for his daughter and public embrace of her has exposed him to some potential consequences. But we're gay people. Just because Cheney can be damaged by bringing attention to his admirable treatment of his daughter doesn't mean he SHOULD. To argue that this is all just so much innocence on Kerry's part is the height of wilfull naivete.

Cheney hasn't just publicly embraced his daughter. He's also publicly tried to bring that aspect of his public life back under control. That is his right.

Feeling the need to share this.

2004-10-14T01:40:00.000-07:00

Marshall asks of Kerry's GAY DAUGHTER moment: "And more to the point: what's the problem exactly unless you instinctively believe that homosexuality is something to be ashamed of?"

I felt compelled to respond "As a gay man..."

I have to disagree with you about Mary Cheney. You say: "And more to the point: what's the problem exactly unless you instinctively believe that homosexuality is something to be ashamed of? "

Well, I don't believe that homosexuality is something to be ashamed of. But I also recognize that my parents are Conservative Christians. And I tend to see the negotiation of our relationship as an issue that is best kept between us.

Dick Cheney has acknowledged his daughter, rather than disowning her, and he's to be commended for that. He's taken a risk WITHOUT Kerry's or Edwards' help. It isn't easy to be a conservative Republican running on such an explicitly Christian ticket and to refuse to disown or even disacknowledge one's gay daughter during this campaign.

Dick Cheney's defense of his daughter is HURTING his re-election chances. As a gay man, I find it disgraceful that loving one's gay daughter can destroy one's political career, ESPECIALLY if one's a Republican. To see Kerry and Edwards smearing salt in that wound STINGS.

I wish they'd stop it. Fine, Cheney's base doesn't like that he has a gay daughter. But there's NO legitimate reason why Kerry should have referenced Mary Cheney. He could have staid at the same levels of general abstraction as he did with the rest of his response ("some people.") But he chose to emphasize Cheney's private family relationship. And in so doing, he sure came across to THIS gay man as trying to punish Dick Cheney for having done right by his GAY DAUGHTER.

That makes me ashamed, and, though I could never vote in a million years for George W. Bush, it makes me feel a little less good about casting my vote for John Kerry.

Bush did OK.

2004-10-13T22:39:00.000-07:00

I wouldn't say he "knocked it out of the park." But he did OK. We'll get back to that, but first...

1) Let's just get this off the table. Kerry embarrassed himself with his answer to the gay marriage question. John Kerry embarrassed me. Fine, fundamentalist Christians don't like to be reminded of Cheney's GAY DAUGHTER. And gays like me hate to see Democrats pandering to the rankest kind of homophobic bigotry. I see Bush's evangelical codewords, "Dred Scott" or "stewardship" and I know what they mean. But they're neither half so abhorrent, nor half so crass as this despicable discussion of Cheney's daughter. That's private business, and... well, if Edwards was put in an awkward situation, Kerry just manufactured and uncomfortable situation.

But anyhow...

2) I would have liked to hear more about Bush's reservations about believing "major news organizations." Unfortunately for me, he chose (quite explicitly) not to go there....

3) I still think Bush lost this debate. I'm sure the CW is likely to say it was a "draw" and thus it was a Bush victory, but I doubt it. I'll give Bush credit - he didn't come across as psychopathic tonight. I dunno if they doped him up on lithium, or if he just spent a lot of time listening to light jazz before his performance, but this was the first debate that he did not come across as an asshole. Good for him. But on issues, I still think Kerry trounced Bush.

4) Kerry's contesting the Catholic vote. And quite frankly, I don't think Bush OR Rove have fully appreciated the difference between a traditionalist Catholic and a traditionalist evangelical Protestant. Bush's rhetoric seems custom-designed to alienate conservative Catholics. We'll know in less than a month whether I'm right on that, but my guess is that Kerry is going to crush Bush in the Catholic vote. Most Catholics know how difficult it is to square the religious positions of the Catholic Church with the civic obligations of an American citizen. Bush is unwarrantedly disdainful of that kind of "nuance." I can't say what a WASP in Atlanta will hear in that debate... but I suspect a Catholic in Atlanta is going to have second thoughts about Bush.

5) On health care. My company outsources it's human-resources department. I originally had a Blue Shield High PPO, which was a great plan. Of course, they abandoned that plan, and I've been forced into a HealthNet PPO, which has been a bane in the life of more than one of my friends and family members. When Kerry talks about choice, my guess is that people with actual jobs will hear a resonance they don't find in Bush's discussion of litigation reform. More people have probably lost a good HMO for a cheaper alternative than have been involved in a medical malpractice suit.

6) Bush on jobs. "Go back to elementary school." It may be a Blue State phenomenon - but many people HAVE lost jobs in the last four years. Education is great, but a lot of people are worried about their own joblessness. And I don't see how a better education for third graders is going to help with that.

7) Bush on taxes - Come on, really. How much have you seen?

8) Bush on Kerry's record - I thought he sounded pathetic. The charge that Kerrry voted to raise taxes "227" times just SOUNDS absurd. He's only been a Senator for 20 years! My guess is that they've seized on this number as a mistaken gamble for clarity. It sounds absurd. My guess is that most people will think it rings of fishy numbers. Twelve times, I bet the critique would have some bite. But 227? Sounds nutty.

9) Kerry's defeated the "flip-flop" charge in the debates. He's willing to argue for things that are not popular. One of Bush's big failures has been to recognize Kerry's growing ownership and refutation of the "flip-flop issue".

10) I doubt "normal people" caught it. But wasn't it silly to hear Bush sneering that "Kerry makes Ted Kennedy the CONSERVATIVE Senator from Massachussetts" and then to hear him a few minutes later boasting about how he worked with Ted Kennedy to pass the "No Child Left Behind Act." That's Bush's idea of bi-partisanship. I'll brag about having worked with you once, but I'll use your name as the proxy for an insult at a moment's notice. I'm sure the French are familiar with that feeling - that schizophrenic emphasis on his interest in "diplomacy" combined with the sneering disdain with the putative objects of that exact same diplomacy.

So, overall, I'd say this debate was a "draw." But I think that it was a draw which is going to HURT Bush more than help him. People are likely to say that a "draw" is better for Bush than Kerry, but I suspect they'll be wrong. Kerry grabbed the momentum, and Bush failed to take it back. My guess is that for average people, Bush's failure, even at his best to decisively call into question Kerry's fitness for office is likely to cinch the deal for Kerry.

If I were to call the election based solely on the results of this debate, I'd say it's all Kerry's race from this point forward.

How Reassuring

2004-10-13T14:12:00.000-07:00

Am I wrong to suspect that Republicans might be behaving anti-democratically?

Bill Janklow's commenting on the resignation of six people connected with the state Republican Party over absentee ballot applications.

The former [Republican] governor and congressman says the national GOP is encouraging campaign workers to cheat. He says his ire is directed at the Republican Party's Victory operation, which helps register people and get them to the polls.

Janklow says his problem with the organization goes back to 2002 when he was a candidate for the US House.

Jason Glodt with the Republican Party says the absentee ballot problem was an honest mistake and has been handled, and that cheating won't be allowed.

Janklow served 100 days in jail for causing an accident that killed a man. He says his comments have nothing to do with his friendship with Democratic Senator Tom Daschle, who's in a close race with Republican John Thune.

Your America - Your Issues

2004-10-13T13:08:00.000-07:00

From Oklahoma:

Tuesday, [Republican Senate candidate] Coburn also said no when asked whether he thought there are so many lesbians in the schools that girls couldn't go to the bathroom.

Geoff's Musings

Reading Dante

Back on Bracton

Private foundations

Another Reply to August.

Call and Response

Response to August

August Thoughts

New entry on Kantorowicz

Reading Notes: Blackstone, Ch. 3

Reading Notes and Excerpts from Blackstone - Ch. 2

A bit of a jumble

More on Kantorowicz

My entry

Investigations

An Old Harvard Law Note

Broad Notes on Political Theory

Dealing with the Constitution

Short Textual Exposition

A Quantum Theory of Sovereign Immunity?

My healthcare story.

Old writing.

Fragments

Reading Note: Gore Vidal's Burr

A list of tales

More magical thinking.

Apologies

New Post

Evil Notes

Some Thoughts

Working towards a deterrence formula.

Reformulating Learned Hand

Old news

Interesting Tech News

Chatterbox

Good Quotes

Reasoning it Through...

Oakland Arcana

Clearing Up the Backblog

Small Mercies

Another Great Article

Really good reading.

Posting to Resume

Hmmm...

Why Democrats Suck

Repulsive

Tactics - The Senate

Senate Control, By State and Party

A Legacy or a Mandate?

Think you're angry?

Lord Almighty...

Drinking the Blues Away

The Radical Centrist Fringe

Come, imbibe my potion...

My First Reactions

Analyzing Defeat

Hearkening Update

Internet Troubles

Truth Chases Fiction

Read this

The Day Before...

Bush: Strong - 213; Weak - 19; Total - 232 Kerry: Strong - 203; Weak - 103; Total - 306

Bush Narrow Margins

Kerry Narrow Margins

That George Bush Charm

Please, No...

Friday Horse Race

Bush: Strong - 254; Weak - 22; Total - 276 Kerry: Strong - 242; Weak - 20; Total - 260

Bush: Strong - 202; Weak - 37; Total - 239 Kerry: Strong - 179; Weak - 120; Total 299

Understanding the Hundred Thousand

Understanding the Hundred Thousand

Worst Case Senario

Criminey!

Breaking News

What if it ties?

Equally Bizarre:

Getting Ugly

My Endorsement - John Kerry

Compare and Contrast

One Week Out

Bush: Strong - 213; Weak - 19; Total - 232
Kerry: Strong - 203; Weak - 103; Total - 306

Bush: Strong - 254; Weak - 22; Total - 276
Kerry: Strong - 242; Weak - 20; Total - 260

Bush: Strong - 202; Weak - 37; Total - 239
Kerry: Strong - 179; Weak - 120; Total 299

Strong Bush - 189; Weak Bush - 60; Total Bush - 249
Strong Kerry - 203; Weak Kerry - 86; Total Kerry - 289

Bush: Strong - 254; Weak - 37; Total - 291
Kerry: Strong - 238; Weak - 9; Total - 247

Bush: Strong - 178; Weak - 98; Total - 276
Kerry: Strong - 186; Weak - 76; Total - 262

Bush: Strong - 254; Weak - 30; Total - 284
Kerry: Strong - 243; Weak - 4; Total - 247
Tied: Iowa (7)

Bush: Strong - 206; Weak - 83; Total - 289
Kerry: Strong - 196; Weak - 53; Total - 249