Monday, March 30, 2020

Sitzfleisch And A Movie In The Time Of Plague-On 3Q
by Michael Liss

I am one of those people who cannot sit still. I wasn’t good at it as a child, and as the decades pass, every indication is that I will never be good at it. I suspect I inherited this from my father, who lacked a single iota of Sitzfleisch, and have passed on the gene to one of my children (no need to name names here, she knows who she is and who to blame.)
I did fully disclose this to my wife before we were married, not that she needed to be told. She hangs in there, with occasional  moments of thoroughly merited exasperation. Weekdays tend to take care of themselves, as we both work fairly long hours. Weekends, on the other hand, can be problematic, so I’m fairly sure she likes it when I leave to go running in the park with my group. As I’m not the greyhound I used to be, this can take quite a bit of time, especially when you add in a stop on the way back for some empty calories. Before you know it, it’s almost Noon. Sitzfleisch problem solved, at least until 1:30.
Of course, this was all before Coronavirus, all before I was deemed “non-essential” and even officially old. I’m not sure where this “old” nonsense came from, but the solicitude for my health and wellbeing merely as a function of an arbitrary number is a little hard to take. All of a sudden there seem to be an awful lot of things I’m not supposed to be doing. I never thought “aging in place” was meant to be taken literally.
This is such a petty complaint. In my City, my Mighty Gotham, we are apparently all aging in place, all taking care by taking shelter. This just doesn’t suit us well. Sitzfleisch is for suburbanites.…the kind of folks who drive a football field’s distance for a quart of milk and have 5,000 square-foot homes with enormous refrigerators, storage space, and a game room where the kids can fight with each other from another zip code.

If you live in the City and have a 5,000 square foot home, you have other homes as well, and are almost certainly in one of them. For the rest of us, we have joined the battalions of the shut-ins and shut-downs. Our buildings and businesses are shut down. Broadway and high culture closed. There are barred doors to some of the highest-end retail shops in the world (often announced by plain-white signs on doors). Diners and pizza parlors open for take-out only. Starbucks closed. Thousands of little shops, also deemed non-essential, sadly stare out with empty eyes. Some of those eyes will never see again.   

This nags at me, this sense that Coronavirus will be like smallpox, and, if we get through it, there will still be scars that will not fade. We will be changed.

Teddy Roosevelt once said that “[c]haracter, in the long run, is the decisive factor in the life of an individual and of nations alike.” Crises have a way of finding the core—some can keep their eyes on the goal and rise above it, others melt down and blather.

We’ve been fortunate here. Andrew Cuomo has risen to the occasion. Fifty thousand health-care professionals have come out of retirement to put themselves in harm’s way. Our cops, firefighters, transit workers, hospital personnel and EMTs have been extraordinary. But what makes this situation far more complicated is that our success in handling this war can’t be solved with just logistics and heroics. The rest is up to us: We need to take care of ourselves and take care of others. We need to be a true community, albeit at a six-foot length.

For non-essential me, working remotely from home, with my essential-but-also-working-remotely wife, this means adjusting to her perceptive (but wildly improbable) suggestion, “You need to develop some Sitzfleish.” I’m still going running, but alone now, so my kinship is reduced to those strangers who pass me (with proper social distancing), and sightings of two regulars, “Bare-Chested Guy” and Mr. G, redoubtable meteorologist for a local TV station.

That 90 minutes of clean air and clear mind helps a bit with the Sitzfleish problem, but it’s only 90 minutes. I need other distractions. I was reading Kyle Harper’s The Fate of Rome, but that turned out to be a spectacularly poor choice: how climate change and pandemics brought down the Roman Empire.

I think we would all agree that’s a no, so I turned to Netflix and YouTube, enlisting alongside Horatio Hornblower, in the terrific eight-part series starring Ioan Gruffudd. Duty, loyalty, cannons, duels, Napoleon, bravery, comradeship, Frogs and Lobsters. There was an episode with the plague…but everyone lived. Still, how many times can you watch derring-do and men yelling “fire”?

Quite a lot, as it turns out, but, ultimately, I turned to David Lynch’s astonishing, and astonishingly beautiful The Straight Story. Based on a true story, it literally is about Sitzfleisch—an old man sitting on a small tractor as he drives 240 miles from Laurens, Iowa to Mount Zion, Wisconsin, to find and reconcile with his ailing brother. In a perfect bit of casting, Lynch picked Richard Farnsworth (who spent decades in obscurity as a stunt man before an Oscar nomination for Comes a Horseman) to play Alvin Straight.

Farnsworth’s face alone is worth the visit; the sun has baked it into a pair of knowing blue eyes set in a glorious map of deep wrinkles. Out of it comes a reedy tenor and an almost sideways way of speaking—unlike many actors, Farnsworth doesn’t rush his lines. Alvin’s hips are shot from a lifetime of labor, and he can no longer pass the eye test for a driver’s license, but, when he hears that his older brother Lyle has had a stroke, he’s impelled to make the trip. He sends his developmentally disabled daughter Rose (Sissy Spacek, in an exquisitely self-effacing performance) to stock up on wieners and liverwurst (leading to a very witty scene where neither the checkout clerk nor Rose quite understand each other), puts a hitch on a handmade mobile trailer, plants himself on a tractor, and begins his trek.

He doesn’t get very far, the tractor being perhaps even older than he. After a swap into a more roadworthy John Deere, off Alvin goes, up and down gentle hills through the farm country. When the light fails, he sleeps by the side of the road, cooks the wieners with a stick over an open fire, and lights up a cigar. Farnsworth has a wonderful emotional stillness about him in these moments—he’s at home on the road.

The Straight Story is really a series of small, perfect, vignettes. Some are gently comic, but this is not a road movie, and it’s certainly not a bucket-list film. Everyone is treated with respect both by the camera and the script. Lynch is secure enough to let his largely starless cast be themselves and has enough discipline to let the scenery speak for itself.

At some point, while you are watching, you might ask yourself when the action will begin. In some respects, it never does. This is the action. Nothing wasted. Everywhere, there’s simple living, common courtesy, and a friendly hand. Alvin’s a proud man, and independent, and those who help have the uncommon gift of not making it charity.

What you find is that it isn’t charity at all. The movie doesn’t infantilize Alvin because he’s old. He is old, and worn, and physically diminished, but he’s not done. He’s still competent. He can still build things, use a welding torch, a shotgun, and his quick wits and a sharp, knowing eye. All those years of living, the good and the bad, left him something to give, and he does. There’s a tranquil evening with a runaway pregnant teen, a moment in a church graveyard when a priest comes out to talk, a pair of feuding brothers, and a stunner in a bar where he shares memories with a fellow World War II vet.

Everything takes time. Like the gentle score by Angelo Badalamenti (who also did Twin Peaks) and the speed of Alvin’s mower, the story just unfolds with the passing landscape, as he makes his way to Lyle. He survives a mechanical failure and near crash, and, while his tractor is repaired, stays with a retired John Deere employee named Danny Riordan and his wife Darla. The couple’s interactions made me smile, particularly when Darla gently teases Danny about being a soft touch, and lets him know she’s glad she married him—despite what her mother said.

Eventually, Alvin gets back on the road. It’s a long journey, and I won’t spoil the ending for you. I’ll simply say that, in a time of chaos, of isolation and uncertainty, this movie reminded me of things that most of us want—family, friendship, community.

I don’t know what’s on the other side of the Coronavirus pandemic, but I hope it’s something as simple as Alvin’s parting words to Danny:

“I want to thank you for your kindness to a stranger.”

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Tuesday, March 3, 2020

Radical Reconciliation: Lincoln's Second Inaugural-On 3Q

He is an enigma. He sits up there in his marble chair, set in a Greek temple, literally larger than life, and he defies us to understand him.

Many have tried. More than 15,000 books have been written about Abraham Lincoln, to say nothing of countless columns, essays, Masters and Doctoral theses. So familiar is the recitation of his story that there is an unmistakable sense of déjà vu when you pick up yet another, turn to a random page, and, after a few words, half-wonder whether the author was unconsciously participating in a form of soft plagiarism.

Yet, if there is any guide to the inner Lincoln, the double-minded Lincoln, the one who could prosecute an incredibly destructive war while engaging in countless acts of mercy, it has to be in the Second Inaugural Address, the one we remember mostly for its closing paragraph, “with malice towards none….”

In this speech, barely 700 words, is the distilled essence of what Lincoln learned through the wrenching years of seeking, and then possessing, the Presidency. He exposes his own inner anguish as he reconciles it. In doing so, in taking responsibility, accepting nuance, and embracing a broader vision, he sets a standard for “Presidential.”

He does all this in about seven minutes.

We know that Lincoln could argue at great length, and brilliantly. We can see that in the transcripts of his debates with Stephen Douglas and his Cooper Union speech. But at his absolute best, here, and at Gettysburg, he is a miniaturist, each word having meaning.

The Second Inaugural begins with just two: “Fellow Countrymen.” Because it is merely a salutation, it is easy to overlook, but this particular choice of words is surely deliberate. In his First Inaugural, he began with “Fellow Citizens,” and used “citizens” a total of six times. Citizenship involves an exchange of rights and obligations, and the First Inaugural, through most of the text, is largely about law and duty. Only in the closing sentences, when Lincoln is appealing to emotion and shared experience, did he switch to “Countrymen.” In the Second Inaugural, when the very idea of who is a citizen has been the subject of a brutal and intense war, Lincoln reaches beyond the formal framework of “Citizen” to a single use of the more inclusive “Countrymen.”

Fellow-Countrymen: At this second appearing to take the oath of the Presidential office there is less occasion for an extended address than there was at the first. Then a statement somewhat in detail of a course to be pursued seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself, and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.
You have to be a little flabbergasted at this opening. It is astoundingly prosaic, and certainly could not have been anticipated by the audience. No exulting in the victories of Grant, Sherman, and Farragut, no extended praise of the fighting man in the field, no applause lines. It is both an expression of Lincoln’s self-confidence in his ability to hold his audience, and a foreshadowing, by omission, of the broader message he intends to convey.

On the occasion corresponding to this four years ago all thoughts were anxiously directed to an impending civil war. All dreaded it, all sought to avert it.
Again, Lincoln surprises. “All dreaded it, all sought to avert it.” The people, his countrymen, whether of the North or South, didn’t want war, but the decision was not altogether theirs.

While the inaugural address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war—seeking to dissolve the Union and divide effects by negotiation.

Lincoln is looking towards the future. He does not want to label all Southerners bellicose secessionists and make reconciliation more difficult. So he separates them from the “insurgent agents” already “in the city” (Washington). Lincoln doesn’t name names, but he doesn’t need to. Many prominent Confederate political leaders had influential roles in Washington before Lincoln’s election, some in Buchanan’s Cabinet.

Both parties deprecated war, but one of them would make war rather than let the nation survive, and the other would accept war rather than let it perish.
To Lincoln, this was an absolutely critical point. There was more than one moral difference between the sides; slavery, of course, but also a political one. Lincoln is stating what to him was obvious: Not only were the secessionists unwilling to accept his election, but they were planning to resist it by force. The Second Inaugural is a remarkably generous speech, yet on the democratic process and the peaceful transition of power, while Lincoln recognizes imperfections on each side, he will not concede moral equivalence.

One might reasonably point out that Lincoln’s formulation seems to have been a little self-serving, and that the choice was not really binary. Why couldn’t Lincoln and the North simply let the South leave? Or why didn’t they offer even more concessions in an effort to save whatever semblance of the Union they could? Certainly, there was no shortage of plans advanced by well-meaning men trying to bridge the gap.

But here you can see Lincoln holding his ground, because he had grasped something from the beginning that many others missed. He understood the difference between mere political opposition, even intense political opposition, and secession. If he had accepted either a compromise that betrayed the issues he had run on, or secession, he would have confirmed the impermanence of the Union for all time. He had to stand firm. As he had said in the First Inaugural, “In your hands, my dissatisfied fellow-countrymen, and not in mine, is the momentous issue of civil war.” They could choose the Constitutional process, introducing legislation while waiting for the next election. Or, they could opt for force. The next move would be up to the seceding States.
And the war came.
One of the most powerful phrases of the entire speech. Its simplicity, finality, and sense of the preordained is a thunderclap. The war came as a result of bad choices people of influence made even if they made them with the best of intentions. Those people included himself. Did he know in 1861 what he was acknowledging in 1865? He partially answers that in the next paragraph.

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it.
“All knew,” yet Lincoln himself maintained for a very long time that preserving the Union was his first, even his only, motivation. He went so far as to make it clear in the First Inaugural that he would accept a Constitutional Amendment guaranteeing that slavery could continue in the South—this, despite his long-held aversion to the institution. Lincoln (to the endless frustration of the Abolitionists) was a man of law, and the Constitution was law, even when it clashed with his sense of right and wrong. “All knew” is an acknowledgement of an internal contradiction. He would abide by his Oath of Office, but he hadn’t really changed his mind since his “House Divided” speech in 1858. “Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become lawful in all the States, old as well as new — North as well as South.” If Lincoln knew, if all the language of compromise (even from those who devoutly hoped for compromise) was whistling past the graveyard, then it’s reasonable to assume that he may also have known his election, and not later secession, was a point of no return. The war would come.

What type of war? A war that shattered illusions:
Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding.
How revealing a paragraph. Both sides had thought it would be simple, a few skirmishes, bloody the other side’s nose, and it would be over. You can see this jaunty confidence in the editorial pages of newspapers from both regions. Part of what fueled this was arrogance, the North in its sense of material superiority, the South in believing it had better men and better generals. Neither grasped it would be a fight to the finish, Sherman’s “total war.” And neither grasped that slavery itself could be eradicated. Both assumed a status quo afterwards—they would fight over the political question, there would be a winner and a loser, but slavery was there to stay—it was simply a question of whether it would spread, and when.

Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God’s assistance in wringing their bread from the sweat of other men’s faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes. “Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.” If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him?
Something important has happened here. We’ve moved from the secular to the religious. Lincoln shifts language into what almost amounts to a sermon. There is a lot of controversy about this in the academic community. Did this profoundly tested man finally turn to the consolations of religion to soothe his personal pain? We know that virtually every Protestant denomination claimed him for their own. Did he see himself as part of any one of them? Or was he using the then-near universal language of the Bible as a means of communicating civic virtue? There is no easy answer, but whatever his true feelings, the symbolism was potent.

It may seem strange that any men should dare to ask a just God’s assistance in wringing their bread from the sweat of other men’s faces, but let us judge not, that we be not judged.
It is an extraordinary statement, since the obvious response to “judge not” seems self-evident. Of course we judge, and of course it’s wrong. But Lincoln, however deeply felt his moral convictions, is not willing to take this step.  Judge not, because the guilt lies upon all, and parsing out who deserves more is beside the point. Judge not, because slavery did not begin with the Confederacy. It was a disease transmitted to this country in the first boats of the first European settlers. Judge not, because it was present, at some point, in every colony, and the benefits flowed not just to slave owners, but also those who directly or indirectly profited from it. Secession was a political sin that could be laid at the door of the Southern leadership. Slavery was the original sin that all shared, either directly, or as an inheritance.

He gives to both North and South this terrible war as the woe due to those by whom the offense came.
The rendering of an account, vengeance, if there is to be any, is not for the North to give to the South. It is permitted to only the morally blameless, those who have suffered the lash.

Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said ‘the judgments of the Lord, are true and righteous altogether.’
With this, Lincoln brings us to the doorstep. He has searched himself and recognized his own frailties and failures, put aside his personal prejudices and found an emotional framework that informs and even comforts him. He believes he can impart that to his audience, both at the Inauguration, and those as a distance. The duration and cost of the war, in lives and in treasure, will be decided not by battles amongst men, but by simple justice—just what is the price for 250 years of suffering? When that price has been paid, but not until it is paid, the war will be over.

Then, his majestic final words:
With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.
He says, “let us strive on to finish the work we are in.” What is “the work”? Here, I believe, we have arrived at the heart of Lincoln’s sense of history and duty. It asks for more than just the surrender of Southern armies, it demands the North forbear retribution and begin the healing. Bind up the nation’s wounds, repair the breach between all aggrieved parties, and “care for him who shall have borne the battle, and for his widow, and his orphan.” Just as he had acknowledged the North’s complicity, he now embraces the Southern people, if not the Confederacy. Lincoln makes no distinction between either Northern and Southern soldiers, or Northern and Southern non-combatants. They are countrymen, and it is the duty of the victor to care for both.

He closes with an even more compelling imperative, greater than military success or political goals. We have offended God and humanity, and to restore our wounded nation fully, we owe a final duty. We must “do all which may achieve and cherish a just, and a lasting peace, among ourselves, and with all nations.”

 “With all nations” is not a throwaway. The world has seen the brutality and the appalling loss of life. They have watched, with concern, the North grow as an economic and military power. They are wondering what this comparatively new nation, one they have dismissed as crude and uncultured, will do as a newly muscular young adult. At this crucial moment, Lincoln has told them: a lasting peace, with all nations.

With that he is done. Historians have long debated whether Lincoln’s reputation could have survived a contentious Reconstruction. We might also ask in what light this speech might be considered if Lincoln had lived to see his hopes for reconciliation thoroughly rejected. It was not to be. In one of the great but tragic ironies, in the audience that day, just yards from the podium, was a young actor, John Wilkes Booth. Less than six weeks later, he rendered both questions moot. Lincoln, and the Second Inaugural—each became “one for the ages.”

The Almighty has His own purposes.

Radical Reconciliation: Lincoln's Second Inaugural was first published on March 2, 2020 on the website

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Michael Liss, March 3, 2020

Monday, February 3, 2020

Potions, Poisons and Progressivism On 3Q

The rights and interests of the laboring man will be protected and cared for, not by the labor agitators, but by the Christian men to whom God in His infinite wisdom has given control of the property interests of the country, and upon the successful Management of which so much depends. —George Baer, President of the Philadelphia and Reading Railroad, during the Coal Strike of 1902.

Whenever I read yet another article about intramural warfare in the Democratic Party over which candidate will be progressive enough for the Progressive wing, I think about that quote.

Know your enemy, know yourself. Do contemporary Progressive politicians really know either? The “old” Progressivism, which reached its zenith in the period between 1896 to 1916, was primarily a social and political reform movement. Faced with the excesses of the unbridled capitalism of the Gilded Age that had preceded it, it did not look first toward redistribution. Rather, it took aim at the pervasive rot that was created as immense wealth was being made in businesses like mining, railroads, shipping, steel, meatpacking, and finance, often at the expense of the working man, the farmer, and the small businessman. From this, it drew its moral force.

We should acknowledge that those fortunes were the product of the efforts of real visionaries, larger-than-life figures like Vanderbilt, Jay Gould, James J. Hill, the Armour and Swift families, J.P. Morgan, Rockefeller, and Carnegie. Talent aside, though, their successes were enhanced by the sharpest, most predatory tactics, of the type described in Ida Tarbell’s The History of the Standard Oil Company, a 19 part series in McClure's Magazine, which chronicled the rise of Standard Oil. Business was not for the faint of heart, and the most successful businessmen were monopolists who went from strength to strength, squeezing every competitor, and every last dollar, out of every transaction.

No matter how entrepreneurial the businessman, no matter how rich the oilfield, no matter how coldly efficient the operator, it couldn’t have been done without grease. Corruption was literally everywhere. State and big-city government often amounted to organized thievery, with bribery and favoritism at every level. Licenses, jobs, concessions and contracts, franchises for the operation of electric street railways, telegraph and telephone lines—everything had a price. The cash reached as high as the federal court system and Congress, with Senators just as prone to having a hand out as local aldermen. And why shouldn’t they? Before the 17th Amendment, Senators were selected by State legislators, and not answerable to the public in a direct election.

There was also a philosophical undercurrent, perhaps too bluntly expressed by George Baer, but shared by many of his caste: a strong sense of Social Darwinism, a belief that good fortune was reflective of a natural superiority and effort, and bad fortune of laziness and immorality. With that as their “reality,” it was thought that government should stay out of the relationships between capital on the one hand, and labor and consumers on the other. If there were to be any government intervention, it should simply be to afford police protection to those men of property.

Just as this philosophy influenced the treatment of gigantic industries, so too did it affect more niche markets, like the one for Patent Medicines. The same forces applied, and the argument we sometimes hear now in opposition to regulation—that the market will self-regulate—was shown to be true in reverse. Those who wanted to play it straight found themselves at an enormous competitive disadvantage. Better to sell something worthless and even dangerous than not to sell anything at all.

Demographics and geography also played roles in creating demand. In 1900, 60 percent of the population lived in rural areas, about two thirds of that on farms. Doctors were not always available, and did not always have either the best training or equipment at hand. Not everyone made the connection that Lister and Pasteur did in the 1850s and 60s, between dirt and infection. As they often lacked adequate anesthetics and were unable to control blood loss, surgeons operated quickly, so nuance was out, making recovery longer and more painful. When they did cut, they did so with bare and sometimes unwashed hands and unsterilized equipment. Not surprisingly, mortality rates were exceptionally high. As to the cities, pockets of wealth supported patrician doctors, but elsewhere, especially in areas that drew large numbers of immigrants, often unspeakable squalor prevailed.

As for even common diseases, running the spectrum of what we would now consider minor to life-threatening, there were no antibiotics, no insulin, and very little in the conventional formulary to cure what ailed people. There was also a strong tradition among rural and immigrant families of self-reliance and the use of home-brewed remedies. Patent Medicines, often packaged and marketed in interesting ways, reasonably priced at perhaps $1 a bottle for multiple doses, and supposedly containing miracle ingredients, were a lot more convenient and cheaper than calling for a doctor. We’ve all seen the prototypical snake-oil salesman in movies like The Outlaw Josey Wales and Little Big Man, but this wasn’t all hucksters in sharp suits. Sears Roebuck, in its 1892 catalog, devoted more than 30 pages to a variety of pills, elixirs, ointments, and devices.

What did they cure? The better question is, what did they claim to cure? Cancer, Coughs, Consumption, and the dreaded Catarrh. Paralysis and Pleurisy. Tremors, Chills, and Fevers. Rheumatism, pimples, spinal issues, eye sores, ringworm, and dyspepsia. Every claim was served up with a little flair from the emerging world of advertising.

What wonderful names and commanding slogans those ads offered: “Dr. William’s Pink Pills for Pale People,” which claimed to have saved a boy from paralysis, and “Dr. Fenner’s Cough and Cold Syrup,” which even promised to be free of opium, morphine, or any narcotic. “Dr. Ayre’s Cherry Pectoral,” which would cease your cough, strengthen your throat, and heal your lungs. “Kemp’s Balsam,” which urged you not to delay, because it was a “sure cure for Consumption in the early stages,” and was also effective on Whooping Cough and Influenza. If all else failed on the respiratory front, “Smith’s Throat And Lung Balm” was no less than “Nature’s Invincible Panacea.”

Ah, Nature. Cure or kill, so let’s not leave out what nature could have in store. The terrifying tapeworm was one of the scourges of the age, often transmitted through undercooked food or the unwashed hands of unsanitary food preparers (of which there was an abundance). There are, apparently, several varieties of these colorful parasites, going by a variety of intimidating names, like T. saginata, T. solium and T. asiatica. Tapeworms head to the intestinal tract, hang out, feed, and decide to reproduce (in enormous numbers). They also occasionally grow far too large for comfort (or health), and migrate to more unfortunate places in the body. In case you needed a little extra push, in the advertising of the time, tapeworms looked much like Amazonian Anacondas. But, fear not. “Kemp’s Vegetable Pastilles” was ready, and “The Kickapoo Indians Tape-Worm Secret” was “sure to get the head, body and all.”

So many organs, so many opportunities. The Liver was a big one. While the French were supposedly experts in livers, if you had to buy domestic, there was “Dr. M.A. Simmons Liver Medicine,” which cured Indigestion, Biliousness, Colic, Costiveness, Dyspepsia, Sick Headache, Foul Breath, and Sour Stomach.

Health issues, of course, can effect us in so many ways, even in those intimate matters for which one would want the privacy of a doctor-patient relationship, if a doctor were ever around:

Let me start with my own gender: Men, can we speak in a discreet, but straight-from-the-shoulder manly way? Who among us hasn’t occasionally felt lacking in….enthusiasm? Yes, help is on the way: “Glandol” for “lack of vigor,” or if you prefer something a little more daring, “Dr. Dye’s Voltaic Belt.” And, let us be honest, we men can be weak. As we can be lured by a pretty face, the siren call of vice is constantly beckoning. Fear not, my friends; should there be unpleasant medical consequences, a Doctor Clarke of the Chicago Dispensary promises to “promptly, reliably, and thoroughly cure.” Chicago too far? Just purchase “Alternative Juice” from the Seroco Chemical Laboratory, or (and I’m not making this up) “Gono,” which apparently is unequaled in treating “all unnatural discharges.”

Women, draw near. I fully admit I don’t quite understand your issues, but there is someone who does. Lydia Pinkham. Mrs. Pinkham was born in 1819, but, thanks to her remarkable preparations of various herbs and spices (and, in their original form, a bracing dose of something more bracing), she is still with us today (in Walmart!), offering a variety of potions for the various stages of a woman’s life. She had a stern, but comforting face (which adorned every box of her medicines) and an intuitive grasp of marketing at a time before there were women doctors (“Only a woman can understand a woman’s ills.”).

Did any of these things actually work? After a fashion, as it depends what you were looking for. If you wanted a buzz, you were in luck. “Old Dr. J. Townsend’s Sarsaparilla” modestly sold as “The Most  Extraordinary Medicine in the World,” claimed to purify the blood and, in turn, cure a litany of other ailments. Along with the sarsaparilla part of the sarsaparilla, it was anywhere between 18 to 25 proof alcohol. Not bracing enough? “Brown’s Iron Bitters” promised relief from diseases of your liver, kidneys, and bowels, plus malaria, fevers, indigestion, and the ever-dreaded dyspepsia. For flavoring, they added 39 percent alcohol, and, according to the U.S. National Library of Medicine, a chaser of cocaine. Prefer the high in slightly lower doses? “Mrs. Winslow’s Soothing Syrup” (for teething babies!) managed to include both morphine and alcohol.

How did all this glorious dosing come to an end? A confluence of factors led to intense pressure on Congress to break away from the contribution-influenced, laissez-faire approach and step in. Women were organizing and emerging as effective and persistent advocates for a number of social causes—Suffrage, of course, but also things like poverty, racism, and hearth-and-home issues like Temperance and public health. People and, in particular, children were dying, and in very large numbers, from disease-ridden food, incredibly toxic additives (Formaldehyde!) meant as preservatives or fillers, and adulterated medicines. In the Spring of 1905, the magazine Women’s Home Companion published Henry Irving Dodge’s “The Truth About Food Adulteration.” Finally, the slow-developing, but eventually spectacular success of Upton Sinclair’s The Jungle (about the horrors of the meatpacking industry) brought public outrage to a boil. At the same time, an extraordinary series of articles by Samuel Hopkins Adams appeared in Collier’s. “The Great American Fraud” painstakingly, and sensationally, laid out the extent of the harm all those good-for-you medicines caused.

But, where to go? The manufacturers were still incredibly powerful, and their influence reached well beyond their friends in the House and Senate. Many general-interest newspapers relied on advertising revenues from them, and those contracts often came with non-disparagement clauses.
As much agitation as there was for change, the time never seemed ripe. The reformers needed something more than just the lurid reporting of horrible facts, and, starting in late 1905, they got it.

First, Teddy Roosevelt finally decided to weigh in, and, on November 5, 1905, he backed what came to be called the Pure Food and Drug Act of 1906, “[f]or preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes.”

TR could be a potent force, but he wasn’t the final gatekeeper. The House and Senate needed to go along, and, there, the chances still seemed very slim. The Senate Majority Leader, Nelson Aldrich of Rhode Island, had absolutely no interest in it, publicly condemned it as an assault on individual liberties, and refused to bring it to the floor for a vote.

The bill’s prospects seemed doomed, until help arrived from an unexpected direction—the 135,000 member, normally apolitical, American Medical Association. The doctors weren’t as much interested in food as they were with drugs, but realized the two were intertwined. They made it clear to Aldrich that he was either going to relent, or all 135,000 of those doctors would rally in favor of the bill and tell their patients to do the same. Aldrich yielded, and the bill was passed by the Senate in late February 1906, and sent to the House. There, in a last gasp of the old guard, it was placed on ice for three months, while industry (with the help of the Speaker, Joe Cannon of Illinois, Stockyard Division) did what it could to stall, amend, and defang it.

But the tide had turned. TR was running out of patience, and commissioned another study, confirming Sinclair’s account of the filthy conditions of the meatpacking houses. Then the market itself shifted: the British refused to buy canned American meat, and Germany and France expanded that to any American meat at all. The ladies sent outraged letters, and the AMA urgent telegrams. The House passed it, and on June 30, 1906, Teddy Roosevelt signed it (taking a hefty portion of credit for himself).

This, of course, wasn’t the end. The new law was filled with compromises, and, with regard to drugs, in keeping with the times, it did not actually ban alcohol, narcotics, or stimulants. It did, however, require them to be listed on the label as “addictive,” and that, coupled with a provision that allowed mislabeled drugs to be seized and destroyed at the manufacturer’s expense, gave it some teeth. In 1911, the Supreme Court issued a ruling in United States v. Johnson that the prohibition against making misleading statements did not apply to claims of efficacy, which were merely free speech. As long as you disclosed the “addictive ingredients,” you were at liberty to claim your product cured whatever ailed the sufferer. In 1912, Congress amended the Act in response, but was only able to provide relief where it could be demonstrated that the manufacturer had knowingly made fraudulent claims.

Still, the Progressives had won something important. In a time in which every bit of regulation was considered a threat to the nation by the powerful, they had marshalled the key components of change in any democracy. They had held up a mirror to the problem, gained critical constituencies not present at the start, enlisted people of influence to take up their cause, and persisted. They had shown that government intervention on behalf of the people was, under certain circumstances, the morally correct thing to do.

That was Progressivism’s genius. It did not attempt to end inequality, or just redistribute wealth. Its bigger ambitions were grounded in basic right and wrong: end the corruption, the undue influence, the disenfranchisement, and the predatory behavior that led to injustice and appalling conditions.
It’s a lesson that is applicable today.

Michael Liss

Potions, Poisons and Progressives first appeared on on February 3, 2020

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Monday, January 6, 2020

An Utterly Biased Guide To Impeachment--On 3Q

By Michael Liss

I have an awful confession to make. I haven’t made up my mind about whether President Trump should be convicted and removed from office.

I know that sounds deranged. I am “troubled” by what Trump apparently did. “Disturbed” by the scorched-earth defense strategy put together by the Trump team. “Deeply concerned” about the continuous violations of norms and the virtual certainty they will continue.

All of these things are true, and I’m not even a moderate Republican trying to show my independence to the folks back home before voting to acquit. I’m a Democrat, and every day of the Trump Regime is an excruciating day. Nothing would make me happier than a landslide repudiation of Trump by a thoroughly repulsed electorate. I want him out, and I believe that, applying a probable cause standard, the House voted appropriately to Impeach and send it to the Senate. Nonetheless, I’m not sure that, if I were a Senator, I would vote to convict.

I need evidence. Old fashioned, I admit, but I need it anyway. I need a credible process with witnesses being called and a case being presented in a formal way. I need a sense that the system actually works, as opposed to just being a two-party rumble where few seem to care about facts, and fewer about process.

Three simple questions: What did the President do? Did he have the authority to do it? And, if so, did he abuse that authority beyond the breaking point?

First, be careful how you answer “what did Trump do?” Eliminate the tweeting, the coarseness, the insults, the self-enrichment, the sheer “noise” of any of the other antisocial pathologies that Trump exercises in real time and in public view. They don’t matter, and the only way to clean those particular stables is on Election Day. The Constitution does not require a President to be Presidential. Only the voters can decide whether character counts.

Of course, a President is not a deity. In December, I argued that, when the Framers were dragging people (some kicking and screaming) away from the Articles of Confederation and toward a new form of government, they had with them (literally) an exemplary model of ability and decorum for a Chief Executive: George Washington. They also had a well-considered fear that whoever sat in the chair after Washington very likely wasn’t going to be his equal. That knowledge shaped their drafting approach in deciding the breadth of the Constitutional grant of power they gave to the office itself. It also impelled them to create a deliberative, evidence-based mechanism for a President’s removal for High Crimes and Misdemeanors.

So, what did Trump do beyond “Noise” that might have been High Crimes and Misdemeanors? For better or worse, the House-passed Articles of Impeachment have been narrowed to cover just two things—the Ukraine matter, and blocking the House from investigating the Ukraine matter. There is much we don’t know about Ukraine, as the White House has done everything in its power to keep us from knowing it. There are things, though, that we do know, and they are not flattering. We know he sent Rudy Giuliani over to see if he could dig up dirt on potential political opponents, and we know Rudy has been hanging around with some questionable pals who happen to have large wallets. That’s pretty gross. We also know there was clearly some quid-pro-quo discussions going on in which Trump and his emissaries were threatening to withhold aid until dirt on Joe was delivered and a public announcement of a Biden investigation was made by Ukrainian authorities. We know the President was using taxpayer dollars as leverage (and compromising recognized American security interests) to obtain personal political gain. We know he was withholding those dollars despite a Congressional mandate, was told by his national security team it was illegal to do so, and then kept demanding a different answer until he found an ambitious lawyer at OMB to give it to him. And, finally, we know those dollars were eventually released, although the pressure continued on Ukraine.

None of this is good, but is enough to remove a President from office? Well, it’s a harder question than it seems, because first you have to define the scope of Presidential Power. If he’s acting within his authority, even if it’s a bit of dirty pool, it is harder to convict than if he exceeded it.
To answer the question of whether he has the power, we should review the thoughts of his most tenacious and effective defender, Attorney General William Barr. In The General and the Attorney General I talked  about parts of Barr’s November 15th, 2019 speech before the Federalist Society, but I want to look at it again in the context of President Trump’s impeachment. Barr, it’s fair to say, is a bit of a situational Monarchist and even a Fabulist when it comes to Executive Power, and in this speech, he lays out his theories. Read it carefully; imagine him advising the President; and you can understand why Trump may think he’s entitled to do whatever he wants.

Here is the Attorney General selectively editing history:

"[T]he Framers had come to appreciate that, to be successful, Republican government required the capacity to act with energy, consistency and decisiveness. They had come to agree that those attributes could best be provided by making the Executive power independent of the divided counsels of the Legislative branch and vesting the Executive power in the hands of a solitary individual, regularly elected for a limited term by the Nation as a whole. As Jefferson put it, ‘[F]or the prompt, clear, and consistent action so necessary in an Executive, unity of person is necessary…."

Opportunistic supporters of the Unitary Executive theory love the Jefferson quote, but it’s a peculiar one. Remember that Jefferson did not participate in the Constitutional Convention, so he cannot speak with first-hand knowledge. Look, also, at the context—an exchange of letters between John Adams and Thomas Jefferson in 1796 (nearly a decade after the Constitutional Convention, so hardly binding), planning for the next Presidential election—and, more importantly, clearly reflecting Jefferson’s experiences in Paris during the French Revolution. He is not reaching for an Imperial Presidency. More likely, he’s referring to the superiority of having a single-person Executive to carry out Executive functions, rather than the hydra-headed, yet dictatorial, approach of both The Committee of Public Safety and its successor, The Directorate.

Be that as it may, I’m not going to argue with the concept of an energetic, consistent, and decisive Executive, so long as he’s acting within the scope of the authority granted to him. The problem is Barr wants a lot more. He’s also in favor of an Executive who can operate on his own, in secret, and without meaningful oversight, and insists that was the intent of the Framers.
How does he get there? By using a kernel of an actual, enumerated power, building on that, and creating much of the rest by inference.

He begins with a reference to “essential sovereign functions” such as war and foreign relations “which by their very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances.” This is quite clever. Barr is taking specific Executive powers referenced in Article II and expanding that authority by adding a manner in which they be carried out.

Then he adds “exigent circumstances” in which the Executive feels he has to act quickly. Barr cites a plague or national disaster, but could just as easily be referring to any perceived “emergency” (a Wall comes to mind). Where is this Strict Constructionist’s scholarly support for exigent circumstances giving enhanced authority to a Chief Executive? Not in the text of the Constitution, and in fact, Congress has had to pass a number of legislative acts granting additional “Emergency” authority. Bear in mind that the “Necessary and Proper Clause” applies to Congress, and not the Chief Executive. So, Barr has to reach back a century before the Constitution to draw from the writings of the English philosopher John Locke. Locke is a giant, but he also wasn’t in Philadelphia.

We aren’t done yet. Barr extends his grasp further, to something made entirely out of whole cloth—his so-called “Executive’s powers of internal management.” These include “…the powers necessary for the President to superintend and control the Executive function, including the powers necessary to protect the independence of the Executive branch and the confidentiality of its internal deliberations.”
There it is. Not only do we have an uber-powerful Unitary Executive who can do pretty much what he wants, but can also use his powers to resist any oversight by Congress or the Courts.

What about all those checks and balances we read about? Barr doesn’t much care for them, except as they may constrain the other two branches of government. He fumes over Congressional “harassment” (hmmm). He goes on at some length to deplore the Judiciary’s review of Presidential motives (he refers to the Travel Ban, but you do wonder if Chicken Kiev was on the menu). He blames “mushy thinking” everywhere, particularly as it may lead to involvement of the federal courts to referee disputes between Congress and the Executive Branch.

"The Framers did not envision that the Courts would play the role of arbiter of turf disputes between the political branches. As Madison explained in Federalist 51, ‘the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.’ By giving each the Congress and the Presidency the tools to fend off the encroachments of the others, the Framers believed this would force compromise and political accommodation."

How the Madison quote fits into the litany of Barr grievances, and exactly which tools Congress retains to “force compromise and political accommodation,” Barr doesn’t say. What he did was more important–he sent DOJ lawyers in House Judiciary Committee v. McGahn to argue for “absolute testimonial immunity,” i.e., the President alone can determine who can be compelled by Congress to testify.

Think about that one for a second. And then consider what U.S. District Judge Jackson said in her decision rejecting those claims—citing the same language from Madison in Federalist 51, and going on to write, “In short, DOJ’s implicit suggestion that compelled congressional process is a ‘zero-sum’ game in which the President’s interest in confidentiality invariably outweighs the Legislature’s interest in gathering truthful information, such that current and former senior-level presidential aides should be always and forever immune from answering probing questions, is manifestly inconsistent with a governmental scheme that can only function properly if its institutions work together.”
So, where are we? We have a President who did what he wanted, supported by attorneys and advisors who reassured him that he had unlimited power in the foreign policy area, including to feather his own nest politically, as his motives were irrelevant. All in the context of hearing from the nation’s top lawyer that he had every right to essentially shut down any investigation.

The fish really stinks, but is it an impeachable fish?

I still don’t know, but here’s what is going to happen: Nancy Pelosi will relent and send the Articles of Impeachment to the Senate. Mitch McConnell will bury them. We will never get any important testimony, as the White House clearly fears a perjury trap. If McConnell is particularly deft, he will find a way to keep every GOP Senator in line, while giving them plausible deniability. In sum, we will learn nothing, except that a President can do what Trump did, then stonewall an investigation. Barr’s strategy of maximum resistance will have succeeded, as will have his plan to exalt Presidential power well beyond anything the Founders could have envisioned. Those who think Trump, or some successor President, won’t try this again are kidding themselves.

And this frustrates me. It doesn’t have to be this way. There was no possibility the Senate would have ever convicted Trump, but at least the process could have been vindicated and the public informed. A Senate committed to a proper allocation of power among the three branches of government would have defended its turf. It would have pushed back on testimonial immunity. It would have, at the very least, reminded everyone that what the Framers painstakingly assembled 243 years ago has value beyond ritualistic bows coupled with aggressively disingenuous reinterpretations.

In Federalist 65, Hamilton asked “Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?”

I’d like to mull that one over while considering what Chief Justice John Roberts said in his just-issued annual report. “We have come to take Democracy for granted.”

Roberts is right. And maybe it’s time we stopped. That’s my utterly biased opinion.

An Utterly Biased Guide to Impeachment was first published January 6th, 2020.