Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Thursday, March 31, 2005

Check Me Out, Hipster Grrrl!

I see you not seeing me
eyes sliding over me
like Yuppie is infectious and catching --

Look at you in those
pink Jimmy Choos with the flared white pants swinging
against the poetry of supermodel legs --

Do your friends know you work out? --

A little Pilates when no one's looking
when you're not busy bemoaning the burden
of overweight teens
with body images like funhouse mirrors? --

Bally's in the 'burbs
when only the thirty-something
lawyer in his coordinated warm-ups
wrestling with his age
is furtively looking? --

I see you not seeing me
brown eyes implacable
as they catch and release mine
like needles in the spaces between
songs hissing and popping
with cryptic defiance --

And O that jacket
thigh-length pleather
strategically distressed
suggesting design
like raked sand
suggests footprints
brown to clash gently
with the pink heels
in which you sashay
like born feet pedicured --

Post-punk harmony --

And me --

My Hilfiger tie and
Hugo Boss suit
anechoic panels --

But that's how I'll sneak up on you
Hipster Grrrl and why --

Because nothing says eternal youth
like the studied disarray
of artfully scarlet pigtails
between my legs
(whether bobbing to The Ramones
or Bacharach) --

Our three-piece band --

You -- Me -- And the Big Lie.

[3/28/05 - 3/31/05]

More on Academic Freedom

Recently, I posted on the proposed Florida legislation purporting to ameliorate the supposed vicious liberal bias on Florida's public college campuses. The debate, of course, continues.

David Bernstein at Volokh Conspiracy posts on the publication of Columbia's internal report concerning its recent (if ongoing) row over alleged anti-Israeli bias demonstrated in the classroom by pro-Palestinian professors. I usually enjoy Bernstein's posts, and I'm in no position to get into the Columbia debate, about which I know very little. If he's right about the limitations imposed on the Times in order to guarantee them an exclusive on the report, it does sort of smell fishy. It seems a Faustian bargain, albeit a common one I imagine, for a newspaper to promise to substantially restrict its substantive coverage of something that's destined for public consumption just to get in on the frenzy a day early.

I want to focus on one narrow aside from his post. He writes, with unusual vitriol:

Is it the job of professors to indoctrinate their students with propaganda, and the job of students to sit back and be indoctrinated? (For a professor who actually argues something very close to "yes," see the comments of a philosophy professor quoted over at the Leiter Report--doesn't everyone know that the only plausible interpretation of Plato is opposition to the Iraq War?!)

Because I like Bernstein's work, and because I once had occasion to correspond at some length with Brian Leiter (years ago, I was admitted to and considered entering the Philosophy Ph.D. program at his UT-Austin), I decided to check out Bernstein's citation.

First, to be clear, Leiter's post just reproduces another philosophy professor's screed, so it does not necessarily reflect Leiter's views. This is what the professor in question actually wrote (excerpted from Leiter's excerpts):

I’ve written a cover piece for our local paper, New Times, entitled “The Politics of Restraint,” on this subject because I felt it was important for the community to know that if college teachers clarify fact from fiction, if they explain the truth on the invasion of Iraq, that Saddam was not responsible for 9/11, there were no weapons of mass destruction, and therefore he could not have been an imminent threat to the U.S, conservatives howl in agony that the teacher is spreading “anti-Bush indoctrination....”

* * * *

Shroder wrongly claims that I yelled at my students, “If you like Bush or Limbaugh, LEAVE NOW.” I admit, I like the sound of it, but it’s flatly untrue. This woman has never attended my class. I have, however, mentioned to my students that the Bush administration’s favorable take on Iraq is being played 24/7 on all the corporate media networks and talk radio shows.

This explains why conservatives are now going after college teachers. Given the massive media control, it’s the last arena left where students are introduced to a humane and rational approach to serious moral issues, where they’ll be exposed to critical analysis, such as examining how the Iraqis, students their own age, feel about the U.S. invasion, an evaluation which has been deliberately ignored from the American corporate media reports from day one of this invasion. Not surprising, my students had never considered what it would be like to be in Iraqi civilian shoes, to be occupied by foreign invaders. It was the first time anyone asked them to think about Iraqi families from an empathic angle.

After we discussed Plato’s theory of Justice, I asked my students if Plato would agree or disagree with Bush’s decision to invade Iraq. Most of them understood the connection between Plato’s assessment of war and the fact that Iraq is the 2nd largest source of oil in the world. Plato argued that “the desire for more things will soon exhaust the resources of the community and before long, we shall have to cut off a slice or our neighbor’s territory…and they will want a slice of ours. At this rate, neighbors will inevitably be at war. Wars have their origin in desires which are the most fruitful source of evils both to individuals and states.”

* * * *

Students labor under the false presumption that philosophy is about the expression of “their” opinions and that all opinions are equally valid. Never mind that most students haven’t read a single philosophy book in their entire lives. Never mind that they do not hold a single college degree on the subject....

Nevertheless, college students believe that they have equal status with their professors. And that is how this movement began—with the absurd notion that students’ opinions, no matter how stupid or wrong those opinions may be, have as much validity as academic scholarship....

Here’s a follow-up question for Republican legislators: Some students still believe that Saddam was responsible for 9/11. Now if I were to tell them that even the Bush administration has announced that Saddam was not responsible for 9/11, under this bill, if passed, would students have the right to sue me because I clarified fact from fiction? Do I now become a Big Bad Liberal Dictator for challenging misinformation?

In today’s FOXTV-anything-goes-media, lies are facts. So it makes it exceedingly frustrating for teachers to question media-repeated lies, distortions and misinformation.

Philosophers have a long tradition of questioning conventional norms and popular beliefs. Socrates was accused by the mob for being unpatriotic because he didn’t believe war with Sparta and the poorly planned Sicilian invasion were good ideas. As it turned out, he was right and they were wrong. Athens was demolished. He was promptly executed on trumped up charges, “Corrupting the Youth” and “Atheism” (gee, that sounds familiar!). In other words, Socrates was found guilty for being a critic of society, which made him an “enemy of the state.”

The intended goal of this bill is to allow students the opportunity to express FOXTV lies or misinformation, and their conservative views, in the classroom without teachers getting in the way. If the teachers challenge their Limbaugh or Hannity views, then the teacher will be sued, tarred & feathered and thrown into prison in the name of “Academic Freedom.” Oh, and let’s not forget the Hemlock.

Clearly, the professor's thesis is that undergraduate Philosophy courses are not simply venues for opinion-expressing free-for-alls. Indeed, the proper pursuit of philosophy is all about the disciplined critical thinking discussed here by an even more conservative, or perhaps just less interesting Volokh Conspirator.

If you take her account at face value, and in the absence of any reason not to I will, nothing in what this presumably liberal philosophy professor said suggested she force-fed students the idea that Plato would have opposed the Iraq war. In light of his theory of war as, by and large, the product of ever-dilating desires (a worthy, if reductive thesis on its terms), she claims to have asked her class whether he would have approved. (Of course, I wasn't in the classroom, but neither was Bernstein.)

It seems to me that this sort of question, this sort of thought experiment, is the very essence of what a philosophy professor does. An historian of philosophy, perhaps, might be wandering afield with such an exercise, but surely Bernstein agrees that a working philosopher must make the subject current for untrained young students to maintain sufficient appeal to keep her classes full. Indeed, if philosophy has no currency, why waste resources on philosophy classes in the first place?

If, after inviting open debate on the speculation of Plato's take on the Iraq war, the teacher professed her own opinion that he would have disapproved, that also would be well within her province. Even less than it is the journalist's job, it certainly cannot be the professor's job to offer so deracinated account of her subject matter to suggest an absence of perspecitve or opinion. That's not what I paid for. And I'd be willing to bet it's not what Bernstein delivers to his students either.

The issue, the only issue, should be orthodoxy, which in this context I define as open hostility to countervailing views rigorously articulated and defended. Nothing in the Leiter excerpt, absolutely nothing, suggests that the professor in question was guilty of the conduct rather glibly and injuriously imputed to her and decried by Bernstein. And while it's finally a small offense, it's still indicative of the right's apparent desire to replace what it claims to be orthodoxy with its own, presumably superior, orthodoxy rather than the reasoned debate it claims to be seeking. Of course Plato would have had nothing to say about the Iraq war whatsoever!

I will go one step further and defend the professor's use of the word "stupid" to refer to certain ideas (I can't remember if it's in the excerpt above, but it is in the article). Stupid being perhaps a needlessly inflammatory word, surely Bernstein and others are relying on the idea that there are stupid, or bad, or indefensible ideas out there that it falls to professors, as paid experts in their areas, to identify as such and correct, if not with a narrow orthodoxy than at least with the tools to understand why the idea is stupid, bad, or indefensible.

But the Florida legislation in question raises serious questions about whether teachers will feel free to perform that quintissential task -- teaching critical thinking by use of example, by singling out bad ideas (whether articulated by students or others) and explaining what makes them bad, so that in the future the students will be better equipped to perform the same task in the context of their own lives.

At the rate things are going, I'm very happy I got my formal education out of the way by now. An education, I might add, that even in New Jersey English and Philosophy Departments seemed to involve the unoppressed participation of many conservative students none of whom were tattooed across the knuckles with a ruler for sharing their opinions.

Guerilla, Um, Something

I was just downstairs on the street, getting a sense of how much wind I'm either going to be fighting or sailing in front of on the ride home (a lot), when an unremarkable blue Buick drove by with letter-sized printer paper glued in both side windows and in the rear window. I didn't catch the rear win, but the two side signs said, respective, MICROWAVE WEAPON, and VAGINAL BURNS.

I've seen people do weird things in their cars before. The one that comes to mind is a car I saw not too long ago that was festooned with signs bemoaning the inadequate care of a local hospital, and specifying in minimal detail injuries suffered by a family member in that hospital. Names were named. Crimes were specified. An effete protest, perhaps, but a concrete protest for concrete reasons just the same.

These signs, though, lack all referent, are utterly protean and almost otherworldly (not to mention transparently paranoic), they scream incoherently.

And those pages were placed so as to reduce substantially the driver's lateral visibility to an extent any urban cyclist would notice and fear. It was positively creepy. But while I'm not thrilled to be sharing a road with this person, I wouldn't mind buying him or her a drink. There's a hell of story there; I can't even begin to imagine.

More Recommended Reading

Friend Branda Maholtz' newly published poem, "prerequisites: people of the city," is well worth your time. One caveat: if you have a serious aversion to fairly rudimentary mathematical principles you might struggle a bit. On the other hand, if you like that sort of thing, the poem is very inventive and engaging, and rewards multiple readings (as good poetry should).

(I especially recommend this to those MoonFriends who once met her of a weekly poker evening, where they saw a very different side of her.)

Congratulations, Branda.

Recommended Reading

For no special reason, I wandered from Michael Berube Online to his page linking some of his many essays, thinking to pick one at random to skim (since I've been unrelentingly pleased with the incisiveness and wit of his blog, and because I haven't read much in the way of humanities scholarship in some time (and because despite the fact that I'm at work, today just sort of feels like Friday, and I've cleared my plate of a lot of pressing work lately)).

As it turns out, however, what I chose to read wasn't really scholarship at all, but rather an essay reproduced in Harper's, concerning the birth and early development of his son, James, born with Down Syndrome.

To select one passage to stand for the longer work is very difficult, as it is for most truly affecting writing. But this will do:

[T]here's something very seductive about the thought that Down syndrome wouldn't have been so prevalent in humans for so long without good reason. Truth be told, there are days when despite everything I know and profess, I catch myself believing that people with Down syndrome are here for a specific purpose--perhaps to teach us patience, or humility, or compassion, or mere joy. A great deal can go wrong with us in utero, but under the heading of what goes wrong, Down syndrome is among the most basic, the most fundamental, the most common, and the most innocuous, leavening the species with children who are somewhat slower, and usually somewhat gentler, than the rest of the human brood. It speaks to us strongly of design--if design govern in a thing so small.

There are many reasons to recommend this essay -- among them a brilliantly accessible snapshot of neonatal development that should humble just about anyone -- but in the end either you'll take my word for it or you won't. Those of you who read it will be handsomely rewarded for doing so.

Free At Last

It's over.

Rest peacefully, Terri. And my sympathies to all who loved her.

We now return you to your regularly scheduled program.

Wednesday, March 30, 2005

More Tid Bits On Me Day

Did I mention that Brian has been writing his commute lovely these past two days?

With winter's late merciless thrust, and the cycling to animate my warming days, this promises to be the most satisfying spring in years.

Tid-Bits On A Me Day

I haven't been around a computer much today, as I took a healthy day to attend various pressing matters. So consider this a little catch-all post to account for my presence, which may end up being the only thing I post today:

First, Obsidian Wings continues to be a great spot to drop in on for really civil, and intelligent debate on the Schiavo case. This post, in particular, is especially worthy for asking how it's judicial activism that something like ten courts have reached the same unequivocal result under clear Florida law? It includes some alarmingly misleading quotes from luminaries of the right's commentariat suggesting either a wilful ignorance of legal principles, or a truly shameful confusion with regard to what the law allows and requires. (Plus there's this Moon guy who's commented over there a couple of times. Gosh! he's smart.)

If all of that's too serious for you, however, check out this photo gallery chronicling the birth of a truly stunning custom fixed-gear bike frame. It's just gorgeous. There are something like 120 pictures there. Check out the 107th picture, if nothing else.

And with that, I return to my regularly scheduled program, Cleaning the Apartment.

Tuesday, March 29, 2005

I'm In Love

I've got this nagging feeling that this is one of those things I'm last to know about, but this whole website is pretty damned interesting, and I must say, when it comes to her (real) Black Widow jewelry, she's a very effective saleswoman.

Did I mention that she's pretty damned hot, too?


David Brooks column today is entitled "Whose Team Am I On?" I'm thinking, Finally, he's going to step to the plate and recognize that he can either continue to rationalize adherence to a party that reflects ideals unrelated to those he endeavors to espouse and announce himself Libertarian, Independent, something.

And what do I get? A quasi-thoughtful consideration of whether he should remain a Met fan now that his adopted home, D.C., has a baseball team.

You know what, Brooksie -- piss off. My team doesn't want you. The Nationals can have you. Just like the Republicans, who are no less than you deserve.

And note to the Times: isn't it about time you gave him the hook? Oh, that's right, the only jobs with lifetime tenure: seats on Article III courts, and the New York Times Op-Ed page. Batting from the right side of the plate, David Brooks, apologist for his supposed party's hypocrisy and dissimulation. Batting from the left side of the plate, Maureen Down, a twittering housewife who is no funnier than she is incisive, which is to say not very.

Almost makes me wish Safire was still there twice a week.

Monday, March 28, 2005

Okay, A Liiiiitle More Schiavo

We need some levity here. And John Cougarstein obliges in his article, "God's 15-Year Quest To Call Terri Schiavo Home Delayed By Congress."

"Bill Frist, Denny Hastert, Tom DeLay are clearly Satan's Helpers," said the Lord Almighty. "Terri's soul was supposed to be in Heaven 15 years ago, but Lucifer has thrown up one roadblock after the next. I've had it up to here, and believe you me, so has Terri."

Eternal peace and happiness awaits Ms. Schiavo in Heaven, the final resting place for most Earthly souls. Ms. Schiavo was unavailable for comment.

House Majority Leader Tom DeLay, long affiliated with the Christian Right, bristled at the charge that he is in league with the Devil. "This legislation is called the Palm Sunday Compromise. Would a Satan worshipper name a bill like that?," said DeLay. "I live to serve God, but He needs to get His facts straight, put down the Sojourner's and turn on Fox."

I really can't say I fault myself for enjoying this article. Of course, that's because I think Schiavo is on her way to where she wanted to be, and because Congress has finally read the tea leaves, surrendered its supposedly vaunted morals to pragmatic concerns about reelection, and butted out of a dispute it had no business in in the first place (oops, spoke to soon).

Ooh ooh ooh, and speaking of DeLay, turns out he went along with his mother's decision, as spouse and decisionmaker, not to continue end-of-life treatment for DeLay's father when he was irreparably injured in a freak accident sixteen years ago. DeLay's staffers are trucking out the legally suspect distinction between withdrawing artificial respiration and withdrawing water and nutrition in a futile effort to make their boss look like anything other than the hypocrite scoundrel he is.

Hat tip, Opinions You Should Have, which you really ought to visit from time to time -- consider starting with this a propos "article"). It's like The Onion except slightly more targeted. Funny stuff.

And now I'm done.

Can You Wrap It In Bacon?

I just can't stop laughing at Burger King's 730 calorie Enormous Omelet Sandwich.

Based on this poll, it would appear that about a third of the country's overweight population is lying.

(If you wrapped the entire EOS in an additional layer of yummy bacon, would it then would be a sausage bacon and cheese omelet sandwich omelet? Don't laugh. It's coming. The Enormous Omelet Sandwich Omelete, and the deep fried Monte Cristo EOSO (although the acronym, McEOSO, might raise issues given it's BK selling the sandwich).)

(Another aside: I wonder how BK feels that one of the News Alert subjects tied to its story in the side bar is "McDonald's.)

Why I May Never Have Children

Amid slacker flourishes (sleeping something liek 22 hours between Thursday and Friday nights) and suggestions of tremendous dedication (putting in nearly nine hours in the office yesterday, then going home and reading briefs for another two-plus hours to prepare for a little thing I had to do at a law school this morning), somehow I managed not to buy myself food this weekend, despite a desperate need.

This is okay. I starve myself sometimes. It's good for the soul (if not for the body), and I don't mind being hungry.

What's not okay is that I failed to buy a new bag of cat food for my two furry family members. My roommates. The slightly melodramatic married couple who live under my roof and play out their tawdry soap opera on the floors and under the furniture of our shared apartment for my entertainment.

This morning, that is to say, I was barely able to give them enough food to get through the day. Thankfully, the old wife didn't notice, since she decided unusually to sleep in until I shoo'd her out of the bedroom when it was time to leave. But the wiry, ever-hungry hubby sure did. He came in immediately upon the sound of food falling into the bowl, looked at it, then looked at me as if to say, "Are you serious?"

Sadly, I was.

Sunday, March 27, 2005

Pittsburgh By Mist and Dusk

From the twenty-something floor of such-and-such a building, the city, at dinnertime on Easter Sunday, is preternaturally still. Downstairs, smoking a cigarette just outside the exit, my car the only one parked on the street and the surprisingly warm mist gently curling the pages of the brief I've brought with me to while away a few minutes, none of the hum that animates any city is palpable. I'm reminded of the only quiet hours in New York City's East Village: from roughly 5 AM to 9 AM on Sundays. There, of course, the quiet is far more unsettling; the contrast with the status quotidian is infinitely more stark. But here, just the same, there is quiet and then there is Quiet.

Pittsburgh's downtown area, like those of most secondary cities and not a few primary cities, serves principally as a giant boardroom -- a place where business is transacted and little else. In the handful of lofts and condominiums sprinkled around the triangle, loves are formed, consummated, dissolved, dreams are imagined, shared, shattered, children are conceived, miscarried, neglected, but no groceries are purchased, very little coffee is sipped in commercial establishments, only a handful of enterprises are open for business, and even fewer outside the Cultural District which is active only for the few afternoon hours of matinees and the associated consort.

This is a city that often sleeps.

I enjoy these quiet hours in the office, whether or not I enjoy the tasks that lure me in when I needn't show my face. There is sometimes a face-time component; my workaholic boss often makes at least a brief appearance when I come in off-hours. But that never animates my choice; he doesn't expect me to work as hard as he does. Indeed, I suspect he would preserve the moral highground he enjoys for, at his advanced age, still being the hardest working man in showbiz. He is also, however, a devout Christian, and this is the one day I am reasonably certain he will make no appearance. I am here today to work, because I feel like working, because I am a little behind, because I have nothing else terribly urgent to attend.

Looking west from the window near the elevator shafts, the tranquility on display outside and below my office window is contradicted. There, looking northeast, I peer down at the tentacular interplay of highways that divide the business district from Duquesne University and the Hill. These arteries thrum with cars like blood cells, invigorating this grey, moist organism with the oxygen of humanity; they, of course, are only active because they channel the passage of people from home to celebrations and back again, sprinting along the Mon, diving north across downtown's barren posterior, sliding along or across the Allegheny, continuing on to points unknown. To count these wayfarers against the city's serenity would be an injustice.

From my window I can see at least fourteen major office buildings. My window is one of no more than a couple dozen that presently are illumined, at least a few of which are just on, casting no shadow of industrious workers in on a holiday. It's rather bizarre.

Notwithstanding the rain, I wish I'd cycled in. I could have turned laps around downtown for hours, allowing the first hints of spring to moisten my legs in the dark, the hiss of my tires on the pavement uncorrupted by any other noise. I might have foresworn my blinking lights, and lurked like a specter in the night, observing each brick and stone and manhole cover in lieu of the people who usually so captivate my attention. Without the nagging concern for errant traffic, I might succumb to the sense of flight that occasionally elevates a ride, when my legs feel like they might pedal forever, and my lungs forget a decade and a half of abuse.

I might never go home.

LiveJournal Moment

It's Easter Sunday, day of resurrection, and after a morning of omelet and coffee and Sunday Times (not to mention seeing a former law and bioethics professor on a local clone of Meet the Press discussing Schiavo, which I could only stand for about three minutes), I'm in the office.

But it's okay. Wanna know why? Because with no one here I can play music on my brand-spankin'-new desktop, as I watch these characters scroll ever so crisply across my new LCD monitor, and this is the music I'm playing

Sometimes simple pleasures are the only pleasures that matter. And with that, I'll bow my nose gently to the grindstone.

Saturday, March 26, 2005

distance makes the heart

from my vantage aloft
the pigeons radiating
like spokes about some curiosity
in a vacant lot

might be ants swarming
a melted dollop
of august ice cream
on a suburban sidewalk;

children clustered around
a squirrel carcass
daring it with each prod
to quicken and flee
terrified to the nearest tree;

or spermatazoa flagellant and undettered
seeking squiggling admittance
to an egg impregnable as stone.

but elusive figures of figures
negate the naked truth
of the unsettling mortality
suggested by distance;

the benignity of pigeons bowed
to their brunch of bread crumbs,
the industry of ants
enslaved to sucrose imperative,
the ignoble irreverence
of children at play,
the complex biology
of fertilization,

are no more remote
than my pale feet
of a sunday languor
unavailingly vertical
at the foot of the bed.

Poetry Interpretation Circle

Care of Zulieka, check out the Yeats poem and dueling interpretations in the comment thread here. Stop by, leave your own thoughts, it'll be just like English 219 (poetry) (well, that was mine anyway -- taught at Rutgers by the incomparable Rick Barr, who left the academy upon being (criminally) denied tenure).

Why Hast Thou Forsaken Me?

On the occasion of Easter, Tony has some intriguing thoughts on why he believes in the crucifixion and resurrection. Really, head-shakingly intriguing. Go read them.

Florida, Desperate to Find A New Right Wing Controversy to Keep It in the National News

Academic freedom, such as it is or shall be, has been in the news a lot lately. The Lawrence Summers brouhaha, the Ward Churchill scandal, and the ongoing battle between the supposed pro-Palestinian bias of far left academics and their pro-Israel adversaries, have been brewing just below the fold for months now.

Now comes the Florida legislature, looking to codify for its state universities principles of academic freedom, so long as this means that the right's views will be equally represented (quantity? quality?) by an academy that skews left rather dramatically, to insure that holocaust and moon-landing denyers and the like are granted equal time in the classroom.

Okay, that's the take at dKOS, and is maybe a bit over the top, but equally absurd results may follow this legislation. If it isn't already (and with dKOS on the case, it probably is), the left side of the blogosphere is sure to be all aflutter with this story within the next couple of days (the left, too, has to fill the vacuum about to be left by Terri Schiavo's death). And if you read the Independent Florida Alligator article on the legislation, it might seem to be cause for great concern, not least in virtue of the comments being made by the legislators supporting the bill, as well as those dems opposing it.

While promoting the bill Tuesday, Baxley said a university education should be more than “one biased view by the professor, who as a dictator controls the classroom,” as part of “a misuse of their platform to indoctrinate the next generation with their own views.”

The bill sets a statewide standard that students cannot be punished for professing beliefs with which their professors disagree. Professors would also be advised to teach alternative “serious academic theories” that may disagree with their personal views.

According to a legislative staff analysis of the bill, the law would give students who think their beliefs are not being respected legal standing to sue professors and universities.

I guess I'm most curious where the staff analysis finds standing to sue in the bill, which does not speak explicitly to provide such a cause of action. Don't get me wrong, the bill is riddled with internal contradictions and non sequiturs, but if the right to sue under it would exist it would have to come from somewhere outside the bill itself (and I'm no expert on Florida law, so perhaps someone can give me a hand here).

I'm going to resist the urge to pick this rather long-winded legislation apart clause by clause, and provide a brief set of observations. First, predictably, the initial WHEREAS clauses emphasize the importance of academic freedom of inquiry, the need to provide the tools necessary to foster critical thought, and so on. Interestingly, this wordy initial language pretty clearly has far more to do with the freedom of academics, not students. Next, however, the bill gets down to its true business: "Students should be free to take reasoned exception to the data or views offered in any course of study and to reserve judgment about matters of opinion." Then it gets down to its true business at the end of its WHEREAS sections:

WHEREAS, the value of the life of the mind was articulated by Thomas Jefferson when he stated, "We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it," and
WHEREAS, the education of the next generation of leaders should contain rigorous and balanced exposure to significant theories and thoughtful viewpoints, and students should be given the knowledge and background that empowers them to think for themselves . . . .

My biggest issue with this legislation as drafted is that it appears to rely on the idea that students are not free to go out and learn independently from sources antithetical to their teachers' views. That wasn't my experience of undergraduate life. If a teacher seems to promote views with which you are uncomfortable, no one is stopping you from hitting the library. If a teacher is responsible for providing students with every possible viewpoint on every topic touched upon, education will be impoverished rather than enriched, because so much less material will be covered. This is a generation of spoonfed children, and bills like this only make sense if we conclude that students are not responsible for learning anything outside of class. This accession to the worst in education is nothing that needs to be codified; teachers, like journalists, are human beings, and even if they try to be objective they will fail.

The bill provides

Students have a right to expect a learning environment in which they will have access to a broad range of serious scholarly opinion pertaining to the subjects they study. In the humanities, the social sciences, and the arts, the fostering of a plurality of serious scholarly methodologies and perspectives should be a significant institutional purpose.

Who's denying them access, is the question? Even if, and it's a big if, certain professors are going to grade students down a bit for failing to simply regurgitate the professors' views on various topics, merely recognizing what those views are and effectively regurgitating them is a part of the learning process; if you don't understand the difference between views and facts, you have yourself to blame. And if you spend all of your time partying, and never wander afield of the syllabi, is that the professor's faults?

(3) Students have a right to expect that their academic freedom and the quality of their education will not be infringed upon by instructors who persistently introduce controversial matter into the classroom or coursework that has no relation to the subject of study and serves no legitimate pedagogical purpose.
* * * *

(6) Faculty and instructors have a right to academic freedom in the classroom in discussing their subjects, but they should make their students aware of serious scholarly viewpoints other than their own and should encourage intellectual honesty, civil debate, and critical analysis of ideas in the pursuit of knowledge and truth.

(3) is the scariest clause, in my view. Who gets to decide what constitutes controversial matter, and how often must it turn up to be "persistently introduced." This reads more like an op-ed than it does a law. And that's dangerous, vesting too much discretion in the hands of judges (which, by the way, is the sort of thing Republicans claim to loathe, inviting what is loosely called 'judicial activism'). Ditto, the "serious scholarly viewpoints" language in (6). This would seem to protect professors from being forced, for example, to grant equal time to holocaust denyers, but then there are surely judges who don't believe the holocaust occured, and we can't expect them to think anything but that such scholarship is "serious." Finally, I'm really not sure how this legislation encourages "intellectual honesty," when it pretty transparently identifies some intellectual orientations as more "honest" than others.

The rest of the bill states principles I entirely agree with -- viewpoint-neutral (which is not the same as rigor-neutral) grading; viewpoint neutral funding of organizations, and so on. And I'm still not sure I see any really scary language, though of course I find the tone of the bill somewhat odious. If the Alligator is to be believed, however, the former law student that I am, with still-bleeding wounds from that experience, cringes at this:

Students who believe their professor is singling them out for “public ridicule” – for instance, when professors use the Socratic method to force students to explain their theories in class – would also be given the right to sue.

I'm pretty sure that 60% of the point of the Socratic method is to ridicule, and in a class of 100 or more students, the public part is a given. Every section might exposes a law professor to dozens of lawsuits.

Here's the crowning irony of all of this: the right, which despises most of what it calls the left's "moral relativism," in lining up behind this cause du jour, is in legislation of this sort imposing as a matter of law that very relativism in denying professors the privilege of relying on their putative expertise to say, "No, in my opinion, this is wrong." If nothing can be wrong, or subject to ridicule for want of rigor or empiric support, than nothing can be correct, either. It's not critical thinking if criticism is illegal.

The bill's explicit invocation of Jefferson -- "We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it" -- highlights the problem here: reason is always free to combat error, but it is incumbent on students, not legislatures, to take up arms.

Friday, March 25, 2005

The Fairer Sense

It's bad enough that smoking dulls smell, the sense of memory, and taste, the Dionysian sense. If it diminished touch, I'd throw in the towel, succumb utterly to the addiction perhaps, or leave it in my wake without so much as a parting glance.

Touch is everything.

Imagine a loving finger tracing the down on your neck, a priest or a lover washing your feet, gentle sensuous or sensual ablutions quickening the tender skin of the most burdened part of your body, the whisper of silk on your cheek as she reaches over you to retrieve something from the endtable, a blade of grass twirled maddeningly against your cheek, your chin, the merciless eroticism of playful hand holding during a performance of Shostakovich's Eighth Symphony, the harsh intrusion of the wooden armrest, the coarse resistence of the auditorium velvet against wool trousers, the hum of the lower registers in your sternum, the soft pressure of her breast against your ribs as she sleeps, her breath soft on your chest.

Touch is everything.

Beside the fact that sex is not terribly difficult to find, it's a certain species of touch that I miss most when I am not romantically involved; and it's intimate contact that I mosts crave and relish in the bloom of a new relationship. Indeed, my tactile greed has cost me a few interesting prospects, as I have too eagerly and frequently violated the space of a woman still learning to take comfort from my proximity. Sex can wait, and sometimes does; touch, however, is always in short supply, always precious, as addicting as heroin and as heady.

A therapist might fix on my preoccupation as evincing some related deprivation in childhood, no doubt. She might even be correct. But this intelligence, like so much of what therapy offers, has more explicative power than it has therapeutic power; the power of compulsion far exceeds the self-awareness that comes with psychic insight. Insight can't stroke my brow, or run its fingers through my hair, trace pathways down the inside of my forearm. Insight cannot unburden me of my troubles in place of a loving embrace.

While my impatience for the press of new skin seems peculiarly mine in intensity, surely it isn't alien to others. One need look no further than our language for evidence to the contrary; vernacular English is suffused with tactile metaphors. One is touched by a plaintive plea; one reaches out to another, perhaps even reaching out and touching someone; one touches base, hits the spot, puts to rest (I imagine a mother tucking a child in, palming his brow briefly to comfort his eyes closed); we push each other away, pull each other closer, we get into bed with, and we embrace what we will; one smooths things over, walks arm in arm with . . . more elude me.

On my third date with the woman, D, who was most dear to me of all that went before and have come since, a woman that by that date I knew I was as serious about as I had ever been about anyone, came up to my apartment after whatever it was we had done. Having already spent a night in bed together, we had crossed the awkwardness barrier some, but not the nervousness barrier -- both of us understood something powerful was underway, and it set us both a tremble, made us clumsy, twitchy, fast to giggle and faster to apologize. But on this, our third physical encounter, the awkwardness of learning each other had somewhat faded, and for me at least the simple enjoyment of minute features came to dominate. I was so highly attuned to every sensation that I might have been a rheostat heating up with the transit through my body of enough electric current to blacken steel.

On my couch, we began to kiss, embrace, press ourselves into each other, surrender to our desire. She pushed me away purposively, and I tried to suppress the giggle of sheer pleasure bubbling up in me like a symptom of my elevated heartrate. Pushing me gently away, she righted me on the couch, and then swung a folded leg over me to sit astride my lap. Our noses touched, our skin tingled with each other's urgent breathing. Her gaze was unfaltering, probing; I felt as though she could see through me and I didn't mind. Her weight on me was the only thing keeping me from floating away. Then she pulled up my shirt and, leaning back, pulled up her own, and pressed her chest to mine so firmly that it was impossible to divine the boundary between us.

In a lifetime of physical encounters with women of many different varieties, inclinations, degrees of physical comfort, that gesture, that moment, was the most intimate I had ever experienced. And so it remains, among many other sensations experienced in thrall of the same woman, D. I tremble to consider what I might sacrifice to speed along to the next opportunity to feel such a profound connection with another, to immerse myself in the heightened physicality of a moment without parallel here or in dreams.

We feel people out, handle things, grasp and hold.

This evening, wrapped in solitude like a smallpox blanket, I went to the salon. The woman who washed my hair this evening, who also does nails, an exceedingly young, attractive, single mother who I know in passing from the Shadyside bar scene and through mutual friends (aside from my patronage of the salon itself, which dates back a couple of years more or less since it opened), beckoned me back to the sinks, gently lowered my head into the rounded, unyielding berth, and washed my hair once and again, the water warming on my scalp as she proceeded, her fingers perfectly lovely in my imagination as I closed my eyes and acceded to the moment, the improbable attention.

Her affection is in her job description at an upscale salon; her technique acquired, trained, and offered with no more intrinsic generosity than a retail clerk's suggestion of a shirt to go with slacks or a factory worker's welding of one part to another. I meditated these thoughs away, however, and accepted the contact as an invaluable blessing.

After a second rinse, she worked a new product into my hair, the hose returned to its cradle, and she began to massage my scalp in earnest in a way that was almost dirty with rote suggestion. Tension drained out of my neck and shoulders as though a sluice valve in my chest had been flung open. The tingle of her fingers in my scalp near my temples contrasted with the slight pain of her thumbs driving into the top of my head as strawberries contrast with champagne; in my reverie a lone identifiable thought obtruded: that maybe I could pay her to do this for as long as my skin would bear it. I opened my mouth to speak, but had no words.

Ideas strike us, and a beautiful woman might be striking; we take hits.

Strange that while our writing, our speech, is suffused with tactile metaphors our language nevertheless is most feeble when it seeks to describe touch itself.

Holiday Wishes

My readership recently, in virtue of the Schiavo posts and others, has included a good-ish number of devout Christians. My small regular readership, of course, also includes plenty of Christians.

To all, I wish you a Happy Easter.

Found Poetry -- Tony Norman in the Post-Gazette

I'm always a bit skeptical of local columnists, and I should admit that I've found Norman's columns facile in the past. That said, his column today, about black on black violence in Pittsburgh, was profoundly affecting. Excerpt:

The preacher is experienced at pointing fingers at the callousness of society. He blames gangsta rap for leading so many young men astray with the lure of empty glamour, sex and violence. He blames the schools for being broken down warehouses of the spirit. He blames white politicians for not creating enough jobs for idle black youth. He blames political corruption, drug dealers and the complacency of the black middle class for everything else.

Over time, the names of the dearly departed -- especially those of African derivation that suggest a connection to a continent they've never seen -- begin to blur in the preacher's sermons. It's hard to tap a vein of genuine emotion when you're called upon to stand over a different body every month. How do you find words of comfort where there are none?
* * * *

As a preacher, all he can do is shake his head and sip coffee from the Styrofoam cup offered to him. He learned long ago that it's never polite to point out self-deception when folks are grieving at funeral receptions. Grieve and do nothing -- that's what people prefer to do.

It's not a problem with which I'm terribly familiar as it occurs in Pittsburgh. One of my ongoing complaints with this city is the degree of social and political segregation -- something wholly alien to me after a childhood spent in a north Jersey suburb. This column, however, is terribly evocative and pointed. I strongly recommend it -- not just for my Pittsburgh readership, but for everyone.

The Roof, The Roof, The Roof Is On Fire . . .

I'm hoping that my numerous friends on the WVU faculty managed not to get too involved in the festivities last night, the traditional burning of everything within reach upon WVU's unlikely victory in the NCAA tournament, advancing them to the Elite 8 for the first time since 1959.

There are too many excerpts of this article to choose from, but I like this especially:

"There's a lot of places that have fires and things of that nature. There's very few places that have it on the scale we do with the consistency we do."

Setting street fires to celebrate sports victories has been a tradition at WVU for at least 30 years, Trevillian said.

"Last night is the worst it's been in a good while. It's not the worst we've ever had," Trevillian said. "I wish they would quit it. I don't think it's going to happen."

Some students said they don't see anything wrong with setting celebratory fires.

"We know how to have fun, and we do it in a responsible way," a student who said his name was Jeff Goodboy told WBOY-TV.

Jeff Goodboy. How precious.

Thursday, March 24, 2005

The Instant News Cycle of the Soul

In January, I posted these words:

But for all of . . . his many words, Moon has merely circumscribed rather than penetrated, eluded rather than engaged, his nascent passion for pure invention, for a lyric life, he once knew beyond cavil would govern his every breath until the grave. . . .

Moon realizes now the fundamental flaw in his founding scheme . . .: he cannot write beyond the sentence that looms, the instant thought; he cannot craft language worthy of even his own attention unless he sublimates all of his grander aspirations into the discovery of the next word.

So how much creativity has MoonOverPittsburgh reflected of late? None. Zero. Zip. I've been sounding off on Schiavo and the like along with every other law- or policy-minded blogger, adding my redundant shouts to the cacophany. I could just as easily have directed everyone to the various other sources I've consulted and been done with it; the blogosphere is not wanting for people who share my views, any more than it is wanting for people who think my views are heretical -- in this instance and others.

And but so here I am, saying what's already been said just to say it, it would seem. And it's not just Schiavo: so much of what I've written in the past few weeks looks the same to me. "Who cares?" isn't the question. I do. But that's not enough. The signal to noise ratio at MoonOverPittsburgh has dwindled, and I care about that -- thousands "care" about Terri Schiavo, but only I can care for my little sliver of spectrum.

In a recent post, Zulieka wrote:

It's the sharing of ideas, the passing of information, the traffic of up-to-date stories and sex scandals and political views, that really, I think, dilute our individualities, make us move in synchronous twitches and jerks. Photos and rumours spread like spilled little black seeds disappearing, reappearing, never completely lost.

In this excerpt and the balance of her post, Zulieka examines matters I weighed in the months prior to instantiating this weblog. What did I hope to gain? What did I have to offer? Is blogging so much masturbation? Of course it is. The more probative question, however, concerns whether it might be of the gratifying self-indulgent variety or the rushed, fatuous sort, a brute expression of urgency rather than an elegant urgency of expression.

I'm pretty sure this is the latter, and to no one's benefit, least of all mine.

Zulieka's weblog serves for me as one of several models of what this medium can be; I look forward to each of her posts as I might to my next opportunity to sit down with a good book. Zulieka Unstrung confirms that offering ourselves around -- in whatever composited or disguised form -- can add something worthy. Aesthetically, I suspect the milieu is no different for the deliberately artistic blogs than it is for writing generally. And I reluctantly reject the idea that everyone is a writer. No more than everyone is a painter, or a violinist, or a cooper, is everyone a writer. And if I'm not a writer, I will derive no pleasure from this. There is no lifetime membership in that company, however: with each sincere effort, it is reaffirmed; with each compromise it is diminished.

I have come late to the blogosphere; initially, I found it most engaging as a source of political scuttlebutt and analysis. But the writer in me kept worming his way to the surface and steering the little arrow elsewhere, and I found, here and there, sites of fine vintage, like new friends with histories and aspirations and fears to gently discover and unwind, with idiosyncracies and tics, with voices, worth reading for their simple honesty (even in their fiction), for what they have to teach about other people and the world -- writerly blogs that reveal, engender, leave red marks like the ghost of someone's imploring touch on the winter-pale skin of my arm.

But how quickly I settle into the proprietary mindset that attends adding one's voice to a chorus, a inward-turning provincialism, and each day I find this site more infected with ineffectual jeremiads about ephemera, throat-clearing affirmations of my existence, things that in quiet moments I'm not entirely sure I care about, or care to express. Even some of those things I write about myself fail to pass muster; confessional, per se, is masturbation of the fatuous variety, the work of idle hands, an idle mind. The instant news cycle of the soul.

In how many different ways do we strive to create the illusion of community? Each new technology -- the wheel, the steam engine, automobiles, airplanes, computers, wireless telephony, the internet -- is used either (or both) of two ways: to aggrandize the illusion of our interconnectedness, or to bring violence to others, itself a negative function of community.

This communitarian yearning is so much of what drives the blogosphere's LiveJournal contingent. There is something to be said for the other aspects -- media criticism, information gathering and promulgation -- and there is something to be said for the proliferation of voices serving this latter agenda, but at some point there are simply too many voices, talking over each other, digressing, throwing dinner rolls at each other and storming from the room.

Is it community when the entire raison d'etre appears to be identifying, airing, and flogging our differences ad nauseam? Are people really all that amenable to persuasion, or have we sublimated our baser instinct toward face to face combat into a new form tailored to the information age, a fight to the death waged with facts and figures? Amid all of this, have I so easily lost my way, motivated by no more than the desire to hear myself speak, draw ever more visitors, and in this way confirm my worthiness, even if in doing so I somehow dim all that is singular about me, my voice, my abstract sensibility?

In law school, in whatever passed for socratic method in a given lecture, nothing pained me more than listening to the sophistry of those students who reflexively parroted points made by other students or the professor just to be heard, to earn the obligatory pat on the head. For undergraduates class participation counts. In law school, however, speaking in class is so much idle tongue wagging unless you have something original to say; grading is anonymous and class participation counts for nothing. Yet, knowing this, people persisted in this way for three years, unrepentant.

. . . synchronous twitches and jerks . . .

In an odd turn of phrase Zulieka distils this magpie phenomenon to its gossipy, inconsequential essence, and never has this been more evident than during the Schiavo fiasco, everyone writing one of two or three or four things, information (and mis-) flying around the room disencumbered of context's stabilizing gravity, shattering against the hearth and windowframes like ghost-flung furniture, and to what end? Poor Terri. Poor us.

More Zulieka:

Yes I believe in sharing, but much is not worthy of sharing, you know? A self-inflicted censorship or ostracization where no influence or inspiration sneaks past the bars—this is valuable. To sit and stare at the rising gray walls, to panic at my own delusions, to have only one person's companionship and listening and help and input, the person of me, that is lost here. Here, an attempt at self-reflection and a crowd of strangers grimace back from the mirror.

Coincidentally, Zulieka wrote me a short message days after I began to work this post out, directing me to a Yeats poem, a "Moon poem for Moon," as she put it. Her brief note and the poem put me in mind of a long passage I would share -- with her, with you:

Magically, the world tips. I'm led to think that only those who grow down live [. . .], but I find I write that only those who live down grow; and what I write, I hold, whatever I really know. My every word's inverted, or reversed -- or I am. I held you, too, that way. You were so utterly provisional, subject to my change. I could inflate your bosom with a kiss, disperse your skin with gentleness, enter your vagina from within, and make my love emerge like a fresh sex. The pane is cold. Honesty is cold, my inside lover. The sun looks, through the mist, like a plum on the tree of heaven, or a bruise on the slope of your belly. Which? The grass crawls with frost. We meet on this window, the world and I, inelegantly, swimmers of the glass; and swung wrong way round to one another, the world seems in. The world -- how grand, how monumental, grave and deadly, that word is: the world, my house and poetry. All poets have their inside lovers. Wee penis does not belong to me, or any of this foggery. It is his property which he's thrust through what's womanly of me to set down this. These wooden houses in their squares, gray streets and fallen sidewalks, standing trees, your name I've written sentimentaly across my breath into the whitening air, pale birds: they exist in me now because of him. I gazed with what intensity . . . A bush in the excitement of its roses could not have bloomed so beautifully as you did then. It was a look I'd like to give this page. For that is poetry: to bring within about, to change.

--William H. Gass, "In the Heart of the Heart of the Country" (from the collection of the same name)

In addition to providing a fitting response to Zulieka, it also is a passage from the short story I most admire. It reminds me what words can be, do.

I don't disavow the politics and law. I'll continue to read these things, and sometimes I'll write about them -- particularly the law, in which I am peculiarly invested, about which I am at somewhat knowledgeable, and toward which I feel all the fondness and exasperation one feels toward a long-term lover. But neither will be MoonOverPittsburgh's primary constituent; it's simply not that often that I have anything material to add to discussions best left to people better informed than I. Quality over quantity: if I have nothing unique to say, I'll say nothing at all.

At my best, I write in a spine-arching sense of wonderment at the incidents and coincidents of the quotidian. Even in horror there is wonder, and in banality's infinite variation as well. I write not just to convey this wonder, but also to preserve it and to sustain it as the only effective defense against creeping ennui. And if, as Zulieka worries, strangers grimace back from the looking glass, so be it -- they, too, are wonderful.

[3/22/05 - 3/24/05]

Fixed-Gear Cycling in the News

Here and here. The other end of the spectrum -- high-end custom-fitted road bikes -- here.

All courtesy of the folks here.

Genius Is Not a Free Pass

Actually, maybe it is. But that doesn't mean it should be.

As a chess enthusiast I can't but be enthralled by the mythology surrounding Bobby Fischer. I loved Searching for Bobby Fischer for like seventeen different reasons (among them, Ben Kingsley, Joan Allen, and Laura Linney -- ah, Laura Linney), but principally for getting at the nature, the privilege and curse, of prodigious talent.

But Fischer should just have shut up and played. Every time he opens his mouth, especially since he resurfaced last year, he sounds like a dyspeptic old fool.

Wednesday, March 23, 2005

A Lasting Impression

The little biracial child curled against the door in the back seat of the japanese sedan, which sat at idle in an illegal spot, an indifferent woman in the passenger seat staring diffidently at a distant point undiscernible. Half-obscured by the mournful rainy-day reflections in the glass between us, the child watched me intently, hunched into myself under the parsimonious shelter of a shallow awning, pressed against the wall, smoking. Each time our eyes met, I turned away; each time I looked back at her, she coolly returned my gaze. Her hair was a curly black tempest reaching toward the roof liner, her light brown skin cafe au lait in a bohemian cafe, rain spilling down the front window.

The fourth or fifth time I looked at her, she smiled. Shy, I looked away. The stilted interaction recalled a handful of fleeting impressions I still carry with me from early childhood.

I remember, most notably, playing alone on the staircase of our East Orange apartment building, on Prospect Street, when I couldn't have been more than five or six. As I sat on the stoop, at the end of a sixty feet walk from the street, a woman walked by. She was white, blonde, to my mind pretty, and as tall as an old-growth tree. She looked at me. She smiled. I blushed, and turned away. It's my first concrete memory of the skittishness that dominantly would characterize my interactions with strange women for decades to come, and even now occasionally obtrudes (though mercifully less frequently than it used to).

I remember tobogganing on an upstate New York farm that belonged to my parents hippy friends, Gary and Andrea. I remember the snow being unthinkably deep, and the curl at the front of the sled providing insufficient protection from the billowing spray our transit incurred, searingly cold vortices of crystalline pain in my eyes, against my cheeks, down the collar of my coat. I remember my exasperation that my trauma seemed funny to the adults surrounding me when the ride ended in a snowbank. I remember also seeing Gary another time when his arm had been injured by a router: the wound looked massive, the scab yellowing and crenellated, though in hindsight I imagine that it was visible precisely because it wasn't all that severe, severe injuries of that sort usually requiring stitches and dressing.

I remember Jenny, a young girl who looks more and more like Little Orphan Annie every time I call her portrait to mind. In first grade we had a torrid affair, involving much hand-holding and traipsing about the school yard together. In second grade I attended a different school, leaving her behind. In third grade, however, she showed up at my school, and we resumed our courtship for a day or a week. Something went wrong, however; some indignity was suffered, and I was to blame. My last memory of her involves her descending a staircase in flight from me between classes, shouting "Faggot" at the top of her lungs as she left. I didn't know what a "faggot" was then -- I suspect she didn't either -- but I was pretty sure she didn't mean it as a compliment.

I remember her little red dresses, her curly blonde tresses.

I remember going to Brookdale Park with my Aunt Shawn, followed by grilled cheeses at a local luncheonette. I remember touring a wrecked storefront with my contractor father spec'ing out a repair of damage caused when a drunk driver exiting a nearby bar plowed inexplicably into the store in the early morning hours.

And I remember so many faces, often of adults, men and women of all ages who passed through my life in a flash but whose residues remain. How many are dead? How many are still where I found them? How many remember me?

Sometimes I wonder just how powerful an influence non-verbal communication might have on another person, children especially.

Here I was, cold in my sweater, feigning indifference to the pretty young girl's steady attention, smoking, trying not to get caught looking at the child by the woman in the front seat for fear of creeping her out. Trying to keep it simple -- just a cigarette break, think about the case, put the butt in a trash can, and so on.

But when finally I could take it no longer, I looked back at the little girl, who was a picture of barely restrained activity behind her impassive traveling companion who stat impossibly still unaware of the increasingly elaborate charade between the child and a strange man on the street. She was beaming, now, the girl, and through the pale reflection I realized why: her tongue was stuck out impossible far.

I smiled. Looked away. Looked back. She was grinning at me again, happy to have retained my attention, impish -- her tongue shot out, even further this time. I continued to grin. Warily eyeing the woman in the front seat to ensure I wasn't observed, I could no longer resist: I scowled playfully at the little girl and stuck my own tongue out. Her smile spread so wide it looked like her head my fall over backwards; in what might have been audible laughter, though the older woman made no sign, she collapsed into the door in a heap, hands lifting to protect her face, eyes aglow with charm, finally only the top of her chaotic shock of hair visible against the glass.

I moved to reenter the building, and she looked up again. This time my smile was more subdued; hiding my left hand from the older woman with my body, I looked down at the little girl over my bottom eyelids and surreptitiously raised my left hand, fingers curled over like cornleaves, in farewell.

And I wonder: will she remember me? Will I remember her? To what end?

Wheel in the sky keeps on turning. Hallelujah.

Armstrong Williams Is Not Like TAP or NPR

Various sites are taking up allegations that campaign finance reform was the product of a sort of left-wing conspiracy to create the illusion of a groundswell. The story starts here. According to the column, which on the facts appears to be unrefuted, former Pew Charitable Trust program officer Sean Treglia "expounded to a gathering of academics, experts and journalists (none of whom, apparently, ever wrote about Treglia's remarks) on just how Pew and other left-wing foundations plotted to create a fake grassroots movement to hoodwink Congress."

The American Prospect, evidently, received something like $132,000 from the Carnegie Corporation to produce a special issue dedicated to campaign finance reform and failed to disclose its financial arrangement in the issue.

The issue itself probably warrants examination and discussion, and I'm not interested in throwing my ignorant self into the middle of it. But Mickey Kaus asks an incendiary question that has, unfortunately, been picked up at MSNBC by Glenn Reynolds and Juan Non-Volokh, guaranteeing its legs in the blogosphere -- "Essay Question: How is the American Prospect different from Armstrong Williams?"

I'll assume for argument's sake that the campaign to pass McCain-Feingold was reprehensible, bought and paid for by foundations with ulterior motives. Bottom line: this is true of most serious legislation (ahem, bankruptcy reform, anyone?).

What I reject, however, is the free pass these commentators give to the notion that this has anything to do with Armstrong Williams. Granted, where journalists or media are paid to espouse a particular viewpoint, there is a conflict of interest and a breakdown of journalistic integrity. Assuming general symmetry here, this means TAP and Armstrong Williams may be very similar.

But to make this comparison so tritely is to obscure a fundamental point which lies at the root of the Williams' scandal: in his case, it was taxpayer rather than private interest group money financing his pre-spun information. That's the reason the Williams story should have had legs, and that's why it was interesting. Corrupt journalists are around, it would seem. Corrupt journalists on the executive branch payroll are something else entirely. It's irresponsible to frame the inquiry in a way that obfuscates this defining feature of the Williams imbroglio.

Rabbit In Paradise

Heather offers some delightful, if hard to swallow, advice:

Lately, I think I'm translating sadness - which is a constant, in some form, no matter how happy you are - into 1) anger, 2) irritation, 3) nitpicking, 4) road rage expressed through spitty, unoriginal outbursts like "Cocksucker." and "Fucking idiot." as opposed to livelier statements like "Ah, very nice. Way to drive, chumpy!" or "No, you first! I insist! Tonight is your night to shine!" 4) alienated feelings, but the flat, colorless kind that don't lend you any real insight into anything. I'm experiencing sadness only occasionally, through 1) sad dreams, 2) sad songs, 2) the low moments on "Deadwood." But those experiences aren't really sinking in - they're fleeting, consumed like other transient bits of media.

I'm blocking it all out. And that's a pretty normal state of things for most people. You can't always feel everything the right way - there is no right way - or the healthiest or most complete way. When you're sad you forget that happy is an option. When you're happy (relatively), you block sad out of the frame.

Blocking sad out of the frame sucks, though, because then your negative feelings take ugly, annoying forms, like self-hatred and moodiness and depression. Comparing rich, deeply-felt sadness to irritation and vague depression is like comparing a heartbreaking Italian opera to the hollow sound of nails screeching across a blackboard.

As the Budweiser ads say, "True." Or something like that.

Tuesday, March 22, 2005

The Final Schiavo Post?

I sort of doubt it -- my outrage knows no bounds -- but rather than continue to go on in my strident way, for now I'm going to hold discussion and send my seven readers to a couple of very valuable sources.

First, Bashman has posted the text of the order issued by the Honorable James D. Whittemore denying the Schindlers their desired temporary injunction. It is as clear as judicial opinions get, and articulates unequivocally why injunctive relief is inappropriate in this case and why the Schindler's claims are as frivolous as Congress's action. Interestingly, the opinion notes that it needn't face the constitutionality of Congress's action in ruling on a TI, because for instant purposes constitutionality is assumed. Finally, however, Judge Whittemore restores a sense of balance by reminding everyone of the importance of the law:

This court appreciates the gravity of the consequences of denying injunctive relief. Even under these difficult and time constrained circumstances, however, and not withstanding Congress' expressed interest in the welfare of Theresa Schiavo, this court is constrained to apply the law to the issues before it. As Plaintiffs have not demonstrated a substantial likelihood of success on the merits, Plaintiffs Motion for Temporary Restraining Order must be denied.

Now we can find out how the Republicans feel about their beloved judicial restraint, of which this order is an example par excellence. Of course, we saw how up in arms they were about the Supreme Court's activist decision in Bush v. Gore.

For another discussion, and probably the sharpest, most opinionated writing I've yet seen from Dahlia Lithwick, see this column.

What He Said

A measured Christian voice recognizes the absurdity of taking the Schiavo argument to either extreme.

Fifty years ago (as Dr. Kearns so eloquently points out) we allowed our family members to pass away when they were sick, partially because medical technology couldn't necessarily keep them alive, but also perhaps because that generation understood death (especially from a Christian perspective) a bit better. Conservatives have cried "Nazi" at this, claiming we are only a short step away from the eugenics of the Third Reich. We only slouch toward totalitarianism when the State cannot allow families to care for their own. Let us make the medical decisions for our loved ones. If someone believes this has been done in bad faith, the state court system can arbitrate those disagreements. A "culture of life" does not mean we cannot allow our loved ones to pass away.


The New Isolationism -- Senator Cornyn Joins Scalia in Rejecting All Reference to Foreign Law

Senator John Cornyn (R - Texas (so you just know this is going to be good)) has introduced a Senate resolution for consideration, which would deny the Court the prerogative to use foreign law in its decisions affecting constitutional law except insofar as as it serves an originalist interpretation. Why, you ask? Well, his alarmist press release tells the tale:

“Step by step, with every case, the American people may be losing their ability to determine what their criminal laws shall be – losing control to foreign courts and foreign governments,” Cornyn said. “And if this can happen with criminal law, it can also spread to other areas of our government and of sovereignty.”


Below, I take the resolution apart premise by premise.

Expressing the sense of the Senate that judicial determinations regarding the meaning of the Constitution of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the Constitution of the United States.

First, note, that it not-so-subtly indicates a clear opinion as to the task of the Supreme Court as arbiter of the Constitution, advising the Court to advert to foreign law only where it "inform[s] an understanding of the original meaning of the Constitution." This is obnoxious in two regards: a) originalism is by no means the dominant school of constitutional interpretation and b) this appears to say, you can only use this source of law you've previously used to support decisions I and my party find untenable when you're supporting our preferred outcomes. Not that this doesn't resemble the general tenor of the GOP right now -- for one example among many, consider it's rampant and fiscally reckless expansion of government and its intrusion into matters traditionally managed at the state level -- it does. Nevertheless, in its results-oriented undertone, it reflects the flagrant contempt in which the party holds the judiciary generally. There is, of course, a more modest reading -- that this Resolution is careful to permit the Court to refer to the Anglo-American legal tradition in discovering the original meaning of the Constitution, something the Court has done many times before. But I'm in no mood to grant benefit of the doubt right now, nor have I been given one reason to do so in recent memory.

Whereas the Declaration of Independence announced that one of the chief causes of the American Revolution was that King George had "combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws";

Now he invokes the Declaration of Independence itself, noting the American Revolution's impetus deriving from King George's subjection of the country "to a jurisdiction foreign to our constitution, and unacknowledged by our laws." I'm as melodramatic as the next cat, but everything about this invocation is offensive. No one is subjecting us to anything. It's true that the Court, in an effort to develop a sense of where our moral compass might lay, has sometimes sought guidance -- not governance -- in legal and social trends found elsewhere, but this is a far cry from subjecting us to anything. And even to the extent that it has done so, it has done so at the hands of the Court interpreting the law of the land -- its constitutional function, to which all Americans are subjected as a matter of course.

Whereas the Supreme Court has recently relied on the judgments, laws, or pronouncements of foreign institutions to support its interpretations of the laws of the United States, most recently in Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002), Lawrence v. Texas, 539 U.S. 558, 573 (2003), and Roper v. Simmons, 125 S. Ct. 1183, 1198-99 (2005);

The three cases mentioned are those finding the death penalty to be cruel and unusual punishment when applied to the mentally retarded (Atkins), those who committed their crime of conviction when under 18 (Roper), and the case finding it unconstitutional to criminalize homosexual sodomy among consenting adults (Lawrence). It is beyond cavil that the majority opinions in all three cases made some reference to international norms in reaching its holding.

Cornyn suggests that in the three focal cases that didn't come out the way the far right wanted the Court "relied" on foreign law. Nothing could be further from the truth. The evolving standards of decency relied upon in Atkins and Roper had nothing whatsoever to do with foreign law. For rhetorical support, the majorities in those cases did note the consonance of their decisions with foreign law, but only in those western cultures from which our own culture is inescapable derived, and again not in any sense reliant thereon. Indeed, in Roper the section on foreign law followed what I read as the dispositive section of the opinion, which had everything to do with legal trends at the state level and nothing to do with foreign law. If anything, the majority's reference to foreign law was a reminder of just how pathetic is the company we keep in executing juveniles -- a rogues gallery of countries we want nothing to do with in virtually every other regard. This premise also must be rejected as disingenuous and misleading.

Whereas the Supreme Court has stated previously in Printz v. United States, 521 U.S. 898, 921 n.11 (1997), that "We think such comparative analysis inappropriate to the task of interpreting a constitution ...";

Here's the problem -- if, and as I've hopefully illustrated that's a big if, the Court indeed relied on foreign law in the three cases named above, those cases all followed Printz and hence speak more authoritatively. Stare decisis is not about invariant law forever and anon, as the Court has often said. The law as articulated by the Supreme Court changes, in ways even the right would be hard-pressed to disparage (notwithstanding its revanchist rhetorical posturing), and if Printz is properly applied here -- a separate question I needn't get into -- surely it's irrelevant in the face of three subsequent opinions rejecting (Cornyn would have it) the very premise for which Printz is cited. Put another way, if Printz governs in the way suggested, then Plessy v. Ferguson can come back to haunt us to. Thank goodness it doesn't work that way.

Whereas the ability of Americans to live their lives within clear legal boundaries is the foundation of the rule of law, and essential to freedom;

The "clear legal boundaries" premise is a red herring. Nothing in the three cases excoriated has done anything but advance the cause of freedom. Clear legal boundaries are required by things like the ex post facto clause and the constitutional prohibition on bills of attainder. Nothing the three cases cited did was akin to the abuses these constitutional provisions were designed to prevent, unless it's somehow punishment to deny the bloodthirsty their day eating popcorn across the plexiglass from some 15-year-old receiving a lethal injection. And even if that is a "punishment" of sorts, it's not a legal punishment of the sort the Constitution protects against, as Cornyn insidiously suggests with this bowdlerized suggestion of changing criminal rules. Liberalizing sentencing rules mid-stream is something that has happened a hundred times without an outcry; the evolving understanding of the Eighth Amendment is nothing more than that.

Whereas it is the appropriate judicial role to faithfully interpret the expression of the popular will through the Constitution and laws enacted by duly elected representatives of the American people and under our system of checks and balances;

Here we find the ephemeral majoritarianism of a party in power with a slim majority. To the extent the Constitution reflected a popular will, it reflected one over 200 years old. It is what it is -- a powerful, brilliant document -- but what it isn't is a step by step user's manual for a nation of 300 million people. The Framers had the wisdom to leave play in the joints by using such nebulous terms as "cruel and unusual punishment," "life, liberty, and property," due process, and so on. I wouldn't argue that all of these terms are so open-ended as to lose meaning, but the Framers knew the difference between a civil system and a commonlaw system, knew how to draft statutes and constitutions and how to avoid overlap, and in particular they knew the danger of short-lived majorities that would wreak havoc with a salutary stability, a steady incremental progression of the law that would reflect the steady incremental progression of a country. If the laws passed by the duly elected representatives were so sacrosanct there would be no need for a constitution, no need for a judiciary. The Framers did not frame some cosmic practical joke; they did not hold with the tyranny of majorities, or mass movements that would level everything in their path every few years. This premise, too, is fatuous.

Whereas Americans should not have to look for guidance on how to live their lives from the often contradictory decisions of any of hundreds of other foreign organizations; and

Puh-leeze. The Court hasn't adverted to hundreds of foreign organizations; it's mentioned in passing that, by comparison to most of our peer states, we are hopelessly backward when it comes to matter of sex and punishment. This hardly hands over the reins to petty despots. And in the matters so decided, no one has had to look anywhere, for the reasons stated above: this would be a legitimate concern if the Court were inventing new crimes by reference to foreign laws, but it simply is not a legitimate concern when such authorities are mentioned to reinforce reasoning liberalizing criminal punishment or allowing people to have sex with any consenting adult they choose to.

Whereas inappropriate judicial reliance on foreign judgments, laws, or pronouncements threatens the sovereignty of the United States, the separation of powers, and the President’s and the Senate’s treaty-making authority:

Huh? Sovereignty? No. Separation of powers? No. Treaty-making authority? How? the only bearing on treaty-making authority I can discern is the Court's noting that our execution of juveniles created some problems for at least one international treaty, but merely by reading our Constitution in such a way that incidentally (and it was incidental, insofar as the Court simply did not rely for its ruling on any treaty ramifications) brings us more closely into line with various treaties that are out there hardly interferes with the government's treaty-making authority. Just because you say it doesn't make it so.

Now, therefore, be it

Resolved, That it is the sense of the Senate that judicial interpretations regarding the meaning of the Constitution of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the Constitution of the United States.

And again, don't do it unless it permits us to continue to uphold the anachronistic biases of our Framers where they match our own.

Ironically, Cornyn accuses his opponents of precisely this sin:

This is not a good faith effort to bring U.S. law into global harmony. I fear that this is simply an effort to further a particular ideological agenda. Because the record suggests that this sudden interest in foreign law is political, not legal; it seems selective, not principled. U.S. courts are following foreign law inconsistently – only when needed to achieve a particular outcome that a judge or justice happens to desire, but that is flatly inconsistent with U.S. law and precedent.

Hi, Pot? This is the kettle. You're black.

But Cornyn has another agenda. Granted, it's one wholly separate from the one reflected in the Senate resolution, but helpfully his above-cited press release, if that's what it is, reproduces the entirety of his floor remarks from Sunday. They're long, but a few bear reproducing.

In 2002, in a case called Atkins v. Virginia, the U.S. Supreme Court held that the commonwealth of Virginia could no longer apply its criminal justice system and its death penalty to an individual who had been duly convicted of abduction, armed robbery, and capital murder, because of testimony that the defendant was “mildly mentally retarded.” The reason given for the complete reversal in the Court’s position? In part because the Court was concerned about “the world community” and the views of the European Union.

This simply is not true -- the "views" of the European Union had little to do with the rhetoric of the opinion, and absolute nothing to do with the grounds of decision.

Take another example. The U.S. Supreme Court has long held that the American people, in each of their states, have the discretion to decide whether certain kinds of conduct that has long been considered immoral under our longstanding legal traditions should or should not remain illegal. In Bowers v. Hardwick (1986), the Court held that it is up to the American people to decide whether criminal laws against sodomy should be continued or abandoned. Yet once again, because some foreign governments have frowned upon that ruling, the U.S. Supreme Court has seen fit to take that issue away from the American people. In 2003, in a case called Lawrence v. Texas, the U.S. Supreme Court held that the state of Texas could no longer decide whether its criminal justice system may fully reflect the moral values of the people of Texas. The reason given for the complete reversal? This time, the Court explained, it was in part because it was concerned about the European Court of Human Rights and the European Convention on Human Rights.

Two problems here: first, he skips right over the Court's decision in Romer v. Evans, in which the Court denied Colorado voters the right to codify practices discriminatory against homosexuals, notwithstanding that such a vote presumably reflected the majority sentiment of Coloradans that homosexuality was immoral. Furthermore, in the years since Bowers the Court never once cited it favorably in any subsequent majority opinion. If the Court didn't take much pride in it, why should Cornyn.

Then he moves to his concerns moving ahead, which involve the case Medellin v. Dretke, which must face concerns regarding the jurisdiction of the International Court of Justice. This has nothing to do with the cases discussed above -- here, international law is directly at issue, whereas in those cases the Court merely mentioned it in passing in dictum, language of no legal effect.

The real sin here is Cornyn's shameful attempt to confuse the above issues with issues directly involving international law, particularly the ICJ. The two simply have nothing to do with each other, and the language of the Resolution appears to have little or no bearing on issues surrounding the ICJ. By masking the true intent of the resolution behind rhetoric concerning the ICJ, to which he will likely find a more sympathetic audience, he attaches a sort of effete roll-back of judicial review like a rider to an issue of far more imminent and complex concern.

Cornyn concludes, rousingly I'm sure he imagined:

I believe that the American people do not want their courts to make political decisions; they want their courts to follow and apply the law as it is written. The American people do not want their courts to follow the precedents of foreign courts; they want their courts to follow U.S. law and the precedents of U.S. courts. The American people do not want their laws controlled by foreign governments; they want their laws controlled by the American government, which serves the American people. The American people do not want to see American law and American policy outsourced to foreign governments and foreign courts.

I wonder if even he knows what he is talking about by this point. American courts do apply the law as written, and if "cruel and unusual" had been comprehensively defined we wouldn't be having these arguments. American courts follow U.S. law and its precedents. American laws are not now nor will any time soon be controlled by foreign governments. And god knows, neither American law nor American policy are outsourced -- if they were, maybe one country would be on our side for reasons of political concurrence rather than geopolitical expediency, biting the strop all the way.
In a humorously a propos side-note, it was business as usual at the Supreme Court today, where Justice Scalia sneered at an attorney's heretical reference to the Royal Navy during oral argument. Maybe Cornyn doesn't have so much to worry about just yet.

Monday, March 21, 2005

AN ACT for the relief of the parents of Theresa Marie Schiavo

Just in case you were wondering, this is what your duly elected legislators were up to this weekend, what your President flew to Washington in the middle of the night -- interrupting his Privatization World Tour no less -- to sign into law:


It is the Sense of Congress that the 109th Congress should consider policies regarding the status and legal rights of incapacitated individuals who are incapable of making decisions concerning the provision, withholding, or withdrawal of foods, fluid, or medical care.

Aside from various disclaimers indicating that this law is aimed solely and exclusively at the Schiavo situation, the above-cited passage is the only section that doesn't directly reference Terri Schiavo, and the only section that even suggests that this topic, which prompted an emergency weekend session of Congress (would that the deficit, say, warranted such treatment), warrants further consideration beyond the confines of the right-wing cause celebre du jour. (Is that too much French, Secretary Rumsfeld?)

Unsurprisingly, the Sense of Congress is, well, nonsense. Incapacitated individuals, for reasons amply explained here and here, are not incapable of making decisions in advance about the issue of sustenance and life support, nor are courts incapable of making determinations about such advance decisions.

If we require unequivocal evidence of intent more or less contemporaneous with the moment of incapacitation, anyone who wants to reserve the centuries old commonlaw right to determine for himself what intrusions into his person to allow will find this time-honored prerogative stripped away from him by an overreaching Congress seeking to make political hay of end-of-life decisions. I'll pass on that outcome, personally. In any event, I think everyone should read the Bill. From a civics point of view, from a legal point of view (in my humble opinion), it's an embarrassment.

The GOP -- Crazy Like Foxes

So it's heartening to learn from this ABCNews poll that Americans by astonishing margins disapprove of federal interference in the Schiavo case (70%) and believe Congress is overreaching for political gain (67-19).

But unless we're so credulous as to believe that Republicans (or, to be fair, Democrats) really are staking out these positions for moral purposes rather than political gain, then we have to assume such disapproval was something the GOP could anticipate, and that they saw something to be gained even in so flouting the People's preferences.

Hmmm . . . could it be that this is just another sop thrown to the far right constituents of the party without regard to the moderates on whose votes the administration rode into office for a second term? No, that couldn't be. After all, this administration has been the voice of moderation for over four years now.

This recalls Katherine's observations, to which I directer your attention last night, that people who vote Republican vote for all of this tripe. All of it. And they're responsible for a Congress that defies the 3 to 1 preferences of the electorate in the Schiavo case, the 3 to 2 preference of the electorate against privatization, and so on and so on. So thanks, folks. Much appreciated. Now if you'll excuse me I'm going to return to drafting my very very very clear advance directive.

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