Monday, May 2, 2022

Your Rights In The Rearview Mirror

 Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. –Alexander Hamilton, Federalist 78

It’s my oldest memory. I am three, standing harnessed between my parents, in a brand-new two-seater 1959 Jaguar convertible roadster. We are on an empty gravel road someplace in Virginia and my Dad decides to let his new baby fly. I can see In front of me the windshield and, below, a gray leather dashboard that has two things of great interest…a speedometer and a tachometer. The motor hmmmmmms as he takes the car through the forward gears, the tachometer first rising and then falling, the speed increasing. The big whitewall tires are crunching the rough road; cinders are flying; we hit 60 MPH, then 70, then 80; and I’m clapping my hands and piping out “Faster, Daddy! Faster!” My mom goes from worried to furious “Slow down, Ernie, slow down!” As he passes 90, I look down for a moment and she’s slapping her yellow shorts. I peek at the rearview mirror and see a huge cloud of dust. 95, 100, and finally 105. Then without warning, and without using the brakes, he starts to slow, gradually downshifting; the speedometer and tachometer fall; and that’s where my memory ends.

I have been thinking about writing a Supreme Court piece since the conservative bloc’s muscle-flexing on Texas’s SB-8 abortion law, and, each time I do, the memory of that beautiful sportscar flying down the road keeps gnawing at me. The thrill of it, the uncertainty, the obvious danger. My Dad’s going through whatever decision-making process he did to start, continue, and end.

We’ve got a new Sheriff in town, a new driver for that beautiful car. Justices Thomas, Alito, Kavanaugh, Gorsuch and Barrett are taking the wheel and the throttle. Just where is their ultra-conservative vision taking us, and at what cost?

Ian Millhiser had a really interesting piece in Vox a couple of weeks ago. In response to a speech by Justice Barrett at Notre Dame Law School, he pointed out the dichotomist (and convenient) status she claimed for herself. Judges, she said, fell into two categories, “Pragmatists” and “Formalists.” Pragmatists went beyond the narrow limits of what Judges should do to arrive at what they saw as more equitable solutions. Pragmatists were sloppy, results-oriented, and failed to show intellectual rigor.

Formalists (like her) adhered closely to the original text, to history and tradition, and acted discreetly, without descending into Judicial Activism. Formalists embraced modesty, Judicial Restraint, Original Intent. Formalists were the true heirs of the Framers.

Let’s examine that for a moment. To my way of thinking, “Original Intent” has more than a little bit of alchemy to it. Certainly, I agree when the language of the Constitution is clear, that’s the law of the land. You change that only through the Amendment process. This is the “original deal” we all agreed to, and it should not be subject to the whims of any transitory majority.

Beyond that, though, Original Intent exists wherever a conservative Justice says it does, after careful consultation with their James Madison Edition Ouija Board. Amazingly enough, Madison’s disembodied spirit always agrees with the side that the “Originalist” wishes to favor. This is nonsense. As farsighted as the authors of the Constitution were, they couldn’t possibly have had a frame of reference for many of the issues we face today. They knew they were just driving in the piles and adding the girders—The rest of government would have to be filled in by their successors. In part, this is why they added Article I, Section 8, which gives Congress power “[t]o make all Laws which shall be necessary and proper for carrying into Execution.”

As to Judicial Restraint and its buddy Stare Decisis, admirable as the concept may be, it is something that, in practice, on controversial issues, primarily exists for Senators on the Judiciary Committee to ask prospective Justices about at their confirmation hearings. “Judge Hornswoggle, my constituents are very concerned about an issue that I cannot ask directly about and really don’t want the answer to, so can you say “Judicial Restraint” three times with your fingers crossed behind your back.” Of course, potential nominees would never consider misleading Senators as to where they stand, and are deeply respectful of past precedent.

So, does Barrett and the rest of the Gang of Five believe in any construct other than their own ideological and political preferences? Millhiser clearly doesn’t think so. They are “flexible” whenever they happen to be considering anything they don’t personally agree with. That happens to encompass a considerable amount of President Biden’s agenda, including vaccines and other public health measures, his Green agenda, and his right to set his own policy on immigration. That’s only the start of it. Add voting rights, the role of religion in public life, guns, gays, and of course, abortion. On each and every one of them, these folks have either already acted or are poised to act in a way that would make genuine Formalists cringe.

We can begin with the 2021 5-4 decision in Whole Woman’s Health v. Jackson, which Barrett joined in full. We are all familiar with the Texas ban on abortion after six weeks, and the unusual way (through bounty hunting) the authors of the statute created to avoid judicial scrutiny. That is the headline, but it’s the process that allowed SB-8 to stand, and that Texas “Secret Sauce” that ought to be as much the story.

Before I go any further, I should point out the obvious. Roe v. Wade still stands, as does the fetal viability standard set in a subsequent 1992 case, Planned Parenthood v. Casey. They stand, but, after Whole Woman’s Health, any State where a majority of the Legislature and Governor don’t agree with those precedents can feel free to ignore them, using the Texas model. When is a constitutional right not a right? You are looking at one right now.

I’m not, in this essay, arguing here for the continuation of Roe or Casey. nor do I have any expectation whatsoever that a hard-right SCOTUS will do anything short of a headshot to both precedents when the Court rules later this year in Dobbs v. Jackson Women’s Health Organization, the Mississippi 15-week abortion ban.

I said above that my objection is to process, and, in the law, process matters a lot. Process, how you arrive at your desired conclusion, the consistency of the reasoning you apply, the precedents you observe, and the degree of authority you assume, are critical. In Whole Woman’s Health, the route the conservative bloc took tossed established process aside to achieve a desired result. Not only did they refuse to enjoin what is clearly a violation of existing law before ruling on it, but they blessed an end-run that essentially strips federal courts of their 200+ year primacy in determining what is a constitutional right.

We have had cynical and even intensely partisan rulings from SCOTUS before. But few have been as profoundly corrosive, as intellectually corrupt, or as damaging to the reputation of the Court as this one is.

Justice Roberts knows it—it’s why this long-term opponent of abortion rights joined the minority on this, so seemingly shocked was he by the blatant disregard for proper order. Quoting from an 1809 Opinion by Justice Marshall in United States v. Peters, “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.”

Why would I get so riled up at this, and why should you, regardless of where you stand on the abortion issue? To start with, the bounty-hunter approach can be used in as many venues as have one-party governments with an itch to scratch about a particular constitutional right. Your rights, the ones you personally value but might not carry the approval of a majority of your State, can also come under assault.

A lot of conservatives acknowledge the theoretical danger of a Blue State doing this with guns or environmental issues, but are muted in expressing their concerns. Their reticence may be viewed as an even more damning evaluation of this Supreme Court. Many perceive the risk as theoretical only, since they expect SCOTUS to rush in to protect the rights that they and their fellow conservatives value, even while they leave other disfavored rights out on the ice to die. Here’s the problem with even that: Why should any American have to see their constitutional rights suspended, no matter how unpopular in their community? Constitutional rights shouldn’t be something you routinely have to litigate to vindicate. Despite Justice Barrett’s insistence that she’s a Formalist, there’s not an atom of Formalism to this approach.

On the other hand, there is a hurricane-force “Pragmatism” that doesn’t just show on deeply divisive issue like abortion. The emboldened conservative wing has far greater ambitions, and is expressing power where it can. This has been particularly true in the area of Biden Presidency policy-making. There, the Court has inserted its own judgments for that of Executive Branch, claiming the legislative framework that created individual agencies (through which the Executive works) lack the specific power to impose regulations with which SCOTUS does not agree. In this, they are, again, ignoring the existing precedent of affording Chevron deference to administrative action because they do not agree with the policy.

It is reasonable to say the five are thirsty for the opportunity to put their own mark on American history, to right whatever they see as historic wrongs on programs and policy making. Take a deep breath; here are a few other cases to keep your eye on over the next several months:

303 Creative LLC v. Elenis is similar to the old “I won’t bake a cake for a gay couple” case we had several years ago. Under Colorado law, it’s illegal for a business to discriminate against LGBTQ customers. The plaintiff here claims it violates her religious beliefs to require her to serve gay customers. Conservatives have been increasingly insistent that those who profess religious reasons can occupy a space free from many regulations the rest of us must observe. This decision could formalize more carve-outs to civil rights legislation.

Students for Fair Admissions Inc. v. President & Fellows of Harvard College: Yet another lawsuit against affirmative action, in this case brought on behalf of Asian students who believe their admits are depressed because of Harvard’s outreach to other minorities. The Plaintiff here, Students for Fair Admissions Inc., is an organization dedicated to ending affirmative action wherever it can find it, and to providing logistical support and funding for litigation against targeted schools. It’s a fairly good bet that the new conservative supermajority will be sympathetic here, while ignoring every other type of admission preference.

Biden v. Texas is a fascinating case where a “Trump Judge” in Texas insisted that President Biden did not have the power to change former President Trump’s “Remain in Mexico” immigration policy. I’d watch this one closely. The idea that a President has no right to alter a predecessor’s policy or policies is something that should be treated as a hand grenade by SCOTUS. The logical, practical ruling would be to side with President Biden, even if the conservatives on the Court prefer Trump’s approach. To do otherwise could demand that SCOTUS determine the validity of any policy changes after a Presidential transition. As even this Court doesn’t want to show that much blatant favoritism, I think Biden will get the right to make his own decisions, but it’s not a certainty. Look for a tortured opinion built on Rube Goldberg logic if it breaks against him.

New York State Rifle & Pistol Association v. Bruen: Potentially a blockbuster on gun rights, this case challenges New York’s 108-year-old (not a typo) gun-control law that puts limits on concealed carry. Oral arguments last November seemed to presage a more limited ruling, preserving a State’s right to some limited areas in which it could restrict guns, but the ambitious agenda of the five most conservative Justices, plus their expressed affinity for firearms, makes this one a wild card.

Let me make one final point. No matter how much we tell ourselves that we live in a free country, our government has grown immensely powerful. It flies down the road at potentially unsafe speeds, relying on humans to make key decisions that have real-world impacts. Not all of those humans are reasonable, not all impartial, not all possess a greater emotional maturity than a three-year old urging his Daddy to go faster. But even so, elected officials get to make those choices, and, so long as they are lawful, judgment on their judgments belongs to the people, not to the courts. What the courts owe us is consistency, fairness, and impartiality.

I happen to have Hamilton on speed dial, and on this we agree:

Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

Your Rights In The Rearview Mirror first appeared on 3quarksdaily.com on Monday, February 28, 2022

You can find my other posts for 3Q at https://3quarksdaily.com/3quarksdaily/author/michaelliss

And follow me on Twitter @syncpol

 Michael Liss

Thursday, April 14, 2022

Lincoln's Imperfect Perfection

by: Michael Liss


In the Bushido code, the samurai were said to have identified with the cherry blossom particularly because it fell at the moment of its greatest beauty, an ideal death.

It is one of the remarkable coincidences of history that the anniversary of Abraham Lincoln’s assassination often comes at the very peak of the cherry blossom season.  In many respects, he, too, died at the moment of greatest beauty—right after he had delivered his “with malice towards none” Second Inaugural Address, right after he had seen Richmond and was mobbed by grateful freedmen, right after Lee had surrendered to Grant, right after there were no more battles he could win.  

The historian Richard Hofstadter once wrote, in his essay Abraham Lincoln And The Self-Made Myth that “The Lincoln legend has come to have a hold on the American imagination that defies comparison with anything else in political mythology.”  

That legend, which Hofstadter likens to a Christ-like assumption of the sins of mortals, followed by their redemption through his martyrdom, is one half of the consensus historian’s construct about how we think about the Civil War.  The other half is best embodied in Robert E. Lee, graying, aristocratic scion of a famous family, kind as a master, brave and brilliant as a reluctant warrior.  

This iconography creates a fascinating, yet discordant picture.  Jefferson Davis is nowhere to be found—he’s a cold and crabbed man who lacks the élan and nobility to exemplify what the South “really” was.  And Grant is invariably portrayed as stolid, relentless, a winner because of overwhelming force, not greater virtue.  Even the scene at Appomattox plays into this.  Lee, unwilling to expose his men to further losses, agrees to surrender.  He approaches, at the agreed-upon time, in his best dress uniform, mounted on his magnificent horse, Traveller.  Grant, stoop shouldered, wearing a private’s tunic, dusty from the field, boots muddy, arrives a half an hour later.  They talk briefly of old times, and Grant offers generous terms and honors, which Lee graciously accepts.  Lee, with great dignity, rides off to his men.  

It’s a wonderful image that allows both sides (and, as I have been reminded a number of times by people a little more Southern than my Bronx birthplace, there are still two sides) their respective heroes, and their respective fantasies of what might have been—a peaceful, respectful reconciliation.  But, the war doesn't end this way without a final sacrifice, and Lincoln is it.  Just a few days later, John Wilkes Booth makes his way to Lincoln’s seat at Ford’s Theatre, fires the shot that ends Lincoln’s life, and elevates his legend. That the assassination took place on Good Friday, and during Passover (Rabbis of the time likening it to Moses being permitted to see, but not enter, the Promised Land) gives it an even more powerful emotional tug. 

Not everyone mourns.  Lincoln is not an immensely popular figure among the powerful.  He is opposed by both Northern Democrats (he’s just won reelection against his former General of the Army of the Potomac, John McClellan) and by many of the more committed abolitionists in his own Republican Party. Lincoln is too hot for some, too cool for others.  Both the steadfastness of his purpose, and the gradualism of his approach have made him many enemies. Northern Copperheads have never stopped hating him, and the Radical Republicans want a far more punitive response than Lincoln’s call for reconciliation and “binding up the nation’s wounds.” 

In the South, reaction was often careful.  A few think it’s a miraculous turning point, some of the Southern newspapers exulted, and Jefferson Davis reportedly said “If it be done, it would be better that it be well done.”  But many others (Lee amongst them) worried about not just the anger of the North, but also the loss of Lincoln as a buffer—they know he stands between them and a vengeful Congress.  And they hate Lincoln’s Vice-President, Andrew Johnson, a border-state Democrat, despised and feared as a traitor to his own people.  

But the common people have a different reaction than the more calculating political class. Perhaps they felt Lincoln was one of their own; literally millions gather to see his train, look at him as he lay in state, and mourn. They seem to understand something that eludes the merely ambitious—they stand with him as he stood with them.  One of the most remarkable tributes came from the residents of Lahaina, in the Hawaiian Islands; the people “weep together with the republic of America for the murder, the assassination of the great, the good, the liberator Abraham Lincoln, the victim of hell-born treason—himself martyred, yet live his mighty deeds, victory, peace, and the emancipation of those despised, like all of us of the colored races.”

What about Hofstadter’s “Lincoln Myth”? Does the reality match the image of fallen saint?  Last week, I asked what kind of man was Lincoln—what did he really believe?  What is it about him that allowed him to transcend his own of-the-period but anachronistic attitudes?  How could a man who, in 1858, in the Charleston debate, state “I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality” yet nevertheless inspire the gratitude “of those despised, like all of us of the colored races.”

I think he had two unusual qualities, hard to find in any person, much less in any politician.  The first was his essential tolerance. In contemporary discourse, we have bastardized the term.  Some use it in a pejorative way, with “tolerance” a synonym for “indulgence”—the habit of ascribing all bad behavior to moral weakness enabled by liberal guilt.  Others describe it as a universal virtue that must be applied to everyone—they command us to understand “root causes” regardless of actual conduct.  Lincoln, I think, embodied a different type of tolerance, one so subtle that it is almost impossible to accurately describe.  His was the tolerance of common courtesy, of accepting differences without embracing them.  He did not demand that you look like him, think like him, worship like him, or vote like him as a predicate to earning his respect for your basic human rights.  

The second was even more rare.  He truly knew himself.  In Hofstadter’s words “Lincoln was shaken by the Presidency.”  He was humbled by his duties, oppressed by his responsibilities, taxed to the extreme by the enormity of the job. This immensely gifted man, of extraordinary intelligence and remarkable character, was “shaken by the Presidency.”

If there is a Lincoln Myth, there is also a Lincoln Reality—a man of remarkable tolerance, and an acute and humbling sense of his own limitations. And one, having given every last ounce of devotion to doing an impossible task as best as he could, falls like the cherry blossom, at the peak of (imperfect) perfection.  

This was first published on April 14, 2015. Renewing it today because Lincoln remains eternally relevant.



Wednesday, March 30, 2022

Biden, Breyer and Babka

 by Michael Liss


I come to praise bakeries past and present. And older men and women faithfully carrying out their duties to their grandchildren.  Of bakeries, once too many to count in my city, but, like old loves, we remember Glaser’s (closed every August so the family could return to Germany), Gertels (each cake caused a local sugar shortage), and Lichtman’s (the Times called it “The Da Vinci of Dough”). Still with us, Moishe’s and Andre’s, Veniero and Ferrara’s, and for the breads of your dreams, Orwashers and Eli’s.

I could go on. In fact, I could go on for some time, but there’s a Supreme Court nomination and the Midterms looming, and duty comes before carb-loading. To be more precise, in this essay, it comes both before and after carb-loading but, be patient with me while I take the strings off the boxes and plate the pastry.

As a President gets top billing, even over the dearly departed French pastry shop on First with the spectacular petit fours and crusty rolls that launched a thousand crumbs, it’s time for me to turn to Joe. However, I will not be insulted if you skip the meal and go directly to dessert. You will find it below the fold.

When I think of Biden, I can’t get out of my mind a quote attributed to Lincoln: “Elections belong to the people. It’s their decision. If they decide to turn their back on the fire and burn their behinds, then they will just have to sit on their blisters.”

America did decide; it saw the fire, saw two deeply flawed candidates, and picked Joe. Like every other President since John Adams, Biden stepped into his predecessor’s shoes, and his predecessor’s challenges. Adams had the impossible task of replacing Washington. Lincoln a secession crisis. FDR inherited the Great Depression; and Truman, WWII. Ike got Korea and McCarthyism; JFK, the Cold War; LBJ and Nixon, Viet Nam; and so on. What’s more, regardless of where they start, few get through their own terms without a fresh crisis or two.

Then, there’s Joe Biden. A raging inferno (or something substantially more scatological) is what he stepped into. From pandemic to poisoned politics, Joe went in with both feet.

Them’s the breaks. If you want the job, you have to be prepared to clean up on aisles three, four, and five simultaneously, as well as deal with anything new walking in the door, including, in his case, a failed but still smoldering insurrection. Joe got elected, and it was his turn.

You have probably read somewhere that Biden is the worst President of all time, an unbroken litany of awful. He’s a terrible speaker. He doesn’t give press conferences. When he does, he talks too much. He called the esteemed Peter Doocey an SOB, which sent so many commentators into space that Elon Musk is looking for royalties. One prominent conservative (out of concern for his feelings, let’s just call him Rumpelstiltskin) offered, “I still haven’t stopped shaking after last night’s attack on the free press.” Can we find this man and send him some bath (and smelling) salts?

Biden, irrespective of his myriad flaws (of which there are myriad myriads), is basically a decent man with a conscience, and so he personally apologized to Mr. Doocey, which of course, showed how weak he is. Biden is also weak with the Chinese, who are about to take over the world. He’s weak on the Southern border, where massive caravans of evil-doers lurk in Fox-built Potemkin Villages, ready to surge towards the Rio Grande at a moment’s notice. He’s weak on the Ukraine crisis, where GOP Shadow Cabinet Secretary of State Tucker Carlson is making his thoughts and prayers known to his viewers while angling for an Order of Lenin. He’s weak on inflation, because the American Rescue Plan helped too many workers, which creates upward pressure on wages. Finally, he’s weak on the cost of fast food, and Granny is now skipping her blood pressure pills to get her Big Macs.

Into this mess, the Gods just delivered to Joe a golden apple. Stephen Breyer, Associate Justice of the Supreme Court, has announced his resignation. Before I dive into the politics of this, just a few words about Breyer. He’s an old-fashioned man in the best sense of the word, considerate, tempered, deliberate, and courteous.

Breyer also believes in what ought to be the central mission of the Court, to view the law impartially and in a non-partisan way. In a lecture at Harvard Law, he spoke of the challenges: “The justices tend to believe that differences among judges mostly reflect not politics but jurisprudential differences. That is not what the public thinks.”

Breyer is right, the public doesn’t think it. When the content of the lecture was made public, he was (not so gently) mocked as antique and worse—but there is an aspiration there that expresses the highest possible function of the Court. It must be seen as a fair arbiter, an honest broker, and not merely an arm of one party and one ideology. It can lean in one direction or another, but the moment it is perceived as just muscle, it loses its place of respect.

So, why does Breyer’s resignation provide an opportunity for Biden, since it will not change the ideological makeup of the Court? For one thing, it lessens the angst of many Democrats over Breyer’s staying, and having Mitch McConnell select yet another Justice. It also reminds Democrats of the essentialness of sticking together, working towards a better result, and focusing, as the Midterms loom, on recruitment, voter registration, messaging–and tangible accomplishments. Democrats need this, and Biden needs it. Current political polling is gruesome, redistricting and Democratic retirements are making things much harder, and there remains the looming threat that states with GOP-led governments will flip the votes they can’t suppress. Democrats are simply going to have to fight, and fight hard, for every seat, from the school board to the Presidency.

There is also a reason beyond just political rhetoric. The public needs to see the implications of the choices they make, and this Supreme Court is going to make it clear just what those choices mean. In a matter of a few months, this Court will hand down a series of decisions which are going to frighten some people to the core. Rights many thought they had, principles that have stood for longer than many of us have lived, will evaporate. This isn’t just about abortion and who gets to use what bathroom, as many folks think. It has the potential to reorder the relationship between the individual and the state, rearrange the interrelationship of the three branches of government, elevate those who claim faith-based objections over the rest of us, encourage vigilantism with regard to enforcing personal morality, and strike at things that many of us believe are no one’s business but our own. This Court needs a youthful, intellectually and temperamentally vigorous champion of the rights that we are about to see lessened or even extinguished. Breyer, as accomplished as he is, would not be that person. Perhaps Biden’s nominee will be.

Of course, there is the little matter of getting that nominee confirmed, and the GOP outrage machine is already at a roar because Biden reaffirmed his promise to select a Black woman. Having just gotten past their annual holiday ritual of reciting a single Martin Luther King quote, they are now left to decide amongst themselves if any at all dare cross party lines and admit that any Biden choice might actually possess, in abundance, the “character” to which Dr. King was referring. My cynical take is that, if McConnell thinks he can’t get either Sinema or Manchin on board, he will let a couple of his folks off the leash, but only after Biden’s nominee is thoroughly roughed up as inadequate and illegitimately selected.

Whoever the nominee is, however brutal the process, it’s just going to have to run its course, because Biden can’t put out every fire. Likely he can’t put out most of them. He needs to choose where to leverage his office best.

If I were he, I might start by going to a bakery (he can call me for a specific suggestion). Last month, at the request of my wife and (adult) children, I made a pilgrimage to one I hadn’t been to since before the start of the pandemic. It was at some distance, but the need for high-quality cake was becoming paramount. Go, I was told, and bring back the essentials of life. Multiple texts flowed in from the interested parties: Marble cake, sponge cake, cookies with cherries on them, kichel, cookies with sprinkles, chocolate cigars, cinnamon cigars, cupcakes (vanilla cake with vanilla icing, with sprinkles and not). Along with the shopping list, I must also bear in mind that our children have their own places, and so the quantity purchased should be reflective of the need to satisfy multiple households.

I grabbed multiple bags (and a pith helmet), and set off on my trek. Machete in hand, I hacked my way through the forest, and stealthily approached the store. My heart sank for just a moment when I saw the gates up and little light emanating from within. Seriously? Then I remembered the gates were always up and it was always dim inside. I passed the window, noting what and what was not on display (possible a cupcake crisis), opened the door, and there, in all its thoroughly unrenovated state, was my personal El Dorado.

I was masked, of course. Behind the counter, in the same cheerfully unrenovated state as I had last seen her, was the tiny, energetic woman who had been waiting on me since the time I was pushing strollers through the door. For brevity and privacy I’m going to call her Mrs. B (B for Babka). In all my visits, I have never heard anyone use her first name. It was always Mrs. B, regardless of the status and age of the customer. “Good morning, Mrs. B, how are the rolls?” “Hello, Mrs. B, can I have four slices of rye?” “Mrs. B, is the cheese danish fresh?”

Mrs. B was not a woman to exaggerate. If something wasn’t good, she would tell you. She and I had a routine down, unchanged by time. Since I came infrequently and ordered a lot, we took it slowly, and as customers came in, I would tell them to go ahead of me. This invariably stretched out the visit (something that never bothered me), but this time we had a snag—in fact, two snags. First was an insuperable issue: No sponge cake. There was something, that, to my eye, looked like sponge cake, but she wouldn’t sell it to me. “No good,” she pronounced. As to marble cake, there was no fresh marble cake in the store, but she could get some. Could I wait?

Of course I could wait. Imagine me not waiting, what kind of a father and a husband would I be? So Mrs. B got on the phone to the owner, who told her 45 minutes, and I agreed.

I knew it wasn’t going to be 45 minutes. I was pretty sure the owner was coming from Brooklyn. But it’s never a sunk cost to wait in a bakery for the marble cake of my wife’s dreams. Besides, I was enjoying myself. Mrs. B was a gas. More customers, more me telling them to go ahead, more “Hello Mrs. B, do you have a little seven layer cake today?” Occasionally, people would come in, sit in the metal folding chair for a few minutes to catch their breath, observe the world around them, and maybe buy half a seeded rye. With some customers (the more bilious ones), Mrs. B stuck to business, but with others, she was cracking jokes, smiling, making a little gossip with the change. Think New York version of Floyd’s Barbershop in The Andy Griffith Show.

All through this, Mrs. B started to fill the non-cake portion of my order. Pounds and pounds of cookies, packed into boxes. Kichel in a giant plastic bag. Jokes, plenty of them. Occasionally, I’d step outside to breathe without the mask on, and update my wife. 45 minutes passed, no cake, and Mrs. B started to get worried about my health. Maybe I had low blood sugar? She kept passing me cookies (to keep up my strength, no doubt.)

She talked about her life. She had grandchildren and great grandchildren. How many, I asked? “You don’t count,” she said. “Bad luck.” Her oldest son, a doctor, was retiring at 70. (Yes, you can start doing the math). She’d been working in the store since 1955 (more math). Emigrant from Poland, although she didn’t have much of an accent, which suggested she came as a child, which would have had to have been before September 1939 (even more math). About Mr. B, no word, and I didn’t ask.

The more time I spent, the more she reminded me of my grandmother, who lived to her late 90’s. Short, tough, sharp, funny, not giving in to age. Whatever the world had thrown at her, she’d managed.

An hour in. I paid her for the non-marble cake portion; it might have been approximate, since Mrs. B uses a lined piece of paper and a heavy black pencil. Thought about finding an ATM. Updated my wife. Walked back in, and Mrs. B let me in on a secret. She watched Fox. She didn’t think COVID was dangerous—her son the doctor had told her that the hospitals were recording other types of deaths as COVID because insurance paid more. This information did not cause me to go screaming out the door. When you are waiting for the essential marble cake, these things seem of very little import.

Time stretched on, so she passed me some babka. Not on my list, but OMG, seriously good chocolate babka. Behind my mask, I couldn’t stop grinning. A Fox-watching Covid-doubting 90-ish woman who cracks jokes and feeds you—there is no way you are arguing with her. Certainly not while she’s laughing a child’s laugh, like the sound of a brook, and you are laughing with her.

75 minutes in, the Boss, and the sheet of marble cake arrives. It is magnificent. How much do I want? Enough for one box? Two? I go for three…just about 6½ pounds of it. Mrs. B. smiles at me, smiles at her boss, and we ring it up. As always, in cash, and as always, I told her to put the change in one of her charity boxes. An old-fashioned store like this doesn’t leave a jar for tips, it leaves tins for education, for the poor, to plant a tree, etc.

We were done. I filled my bags with goodies, thanked Mrs. B one more time, and headed for a bus….way too many pounds to handle walking back. Scents of lemon and cherry and chocolate emerged. Plus an unmistakable babka bouquet that was not to be ignored (of course I bought one, it would have been wrong not to). While I had not succeeded in getting everything on everyone’s list, the core of the mission had been accomplished. The family would be fed. Hunter-gathering at its best.

You might reasonably ask why I’ve gone on this long about a trip to a bakery. It’s because it was all so incredibly unrushed, so filled with the littlest of details and of small, brief, human interactions. It was all so normal, so decent, when both are in short supply.

I have a feeling that Joe Biden gets the idea of simple neighborliness. If he does, if he can find a way to help return us to something closer to a community, then a lot of the drama infecting so many facets of our lives might move to the fringes, where it belongs. With that, perhaps we can find value again in what was given to us, including the idea that we are one country with a common legacy and destiny of freedom.

Justice Breyer says America is “an experiment that’s still going on,” based on its Constitution and founding principles. “My grandchildren and their children, they’ll determine whether the experiment still works. And of course, I am an optimist, and I’m pretty sure it will.”

I’m an optimist as well. I’ll leave it at that, for now.


Biden, Breyer and Babka first appeared on 3quarksdaily.com and you can find my work there every four weeks at https://3quarksdaily.com/3quarksdaily/author/michaelliss




Tuesday, March 1, 2022

The Demands Of Citizenship: JFK At Vanderbilt

The Demands Of Citizenship: JFK At Vanderbilt

But this Nation was not founded solely on the principle of citizens’ rights. Equally important, though too often not discussed, is the citizen’s responsibility. For our privileges can be no greater than our obligations. —John F. Kennedy, May 18, 1963, Nashville

May, 1963. JFK is in a centrifuge, buffeted by a series of challenges from abroad and at home that would have taxed anyone. Underneath the glamour and optimism of Camelot was a roiling mess of seemingly intractable problems, including the global threat of an aggressive, expansive Communism, and domestic unrest related to the irrefutable moral logic of the Civil Rights Movement set against implacable, and often violent, resistance.

All of this, the triumphs and the troubles, are, for the first time, playing out in black and white (and occasionally in living color) on television screens across America. We have clearly moved into a “see it now” age: in just the decade of the 1950s, the percentage of households with sets went from about 9% to about 87%. Soft censorship (reporter circumspection and editorial oversight) still existed, but the vast majority of people were getting their news visually, and sometimes that news contained graphic and unforgettable images.

Kennedy clearly understood the power of the new medium. He wrote a short essay for TV Guide in November 1959, in which he discussed his concerns about television’s potential for demagoguery, but also said it gave an opportunity to the viewing public to judge for itself a candidate’s sincerity—or lack of it. If that was a prediction, it was a pretty good one: Ten months later, in what was a decisive moment in the 1960 election, he was debating Richard Nixon, and winning, in part, on style points.

Charisma or not, glamour or not, it’s arguable JFK wasn’t quite ready for the Presidency when, at 43, he became the youngest man ever to be elected. His prior service in both the House and Senate had been unremarkable, and he had no executive experience. He made mistakes, some of them big ones. The Bay of Pigs fiasco, as well as expanding the American presence in Viet Nam are the most notable, but his often-fractious relationship with Congress, particularly in his first two years, didn’t help.

What Kennedy did have, in abundance, beyond just charisma, was the capacity to communicate (which is not necessarily the same thing as eloquence), the ability to express optimism, and the willingness to accept responsibility when he failed—in short, to lead in both good and bad times. Paired with that were personal qualities that gave substance to the image, most notably his intelligence, firmness of purpose, and coolness under fire, as his deft handling of the immensely dangerous Cuban Missile Crisis displayed.

What would eight years of JFK have looked like? None of us, fans, critics or somewhere in between, can know. Part of the enigma that was JFK stemmed from what the historian Robert Dalleck referred to as his “unfinished life.” We can project upon that life what we would like.

What we do have is the historical record of what he did, and what he said, if not always his inner thoughts. For those, we have to find opportunities to peek behind the curtain of the carefully choreographed. Such a moment may have come when he accepted an invitation to speak in Nashville to commemorate the 90th Anniversary of the founding of Vanderbilt University.

I had forgotten about this speech until Larry Sabato, Director of the University of Virginia’s Center for Politics, and a JFK scholar, posted a link to a portion of it on Twitter. The image is a bit grainy and the sound quality isn’t perfect, but there’s something about it that is worth taking notice of.

JFK’s demeanor is serious and a bit subdued, and his words, while interesting and thoughtful, reflect that. It is not particularly eloquent; it doesn’t soar or stir the heart the way some of his more famous orations did. It is actually a bit flat (direct, but flat) when talking about Civil Rights, as if Kennedy is implicitly acknowledging that he knows there are no magic words to make the issue go away. Still, in its linkage of duty and rights, of the critical nature of education in a democracy, and of the greater obligations to society due from those who have more, there is clarity and real power.

I speak to you today, therefore, not of your rights as Americans, but of your responsibilities. They are many in number and different in nature. They do not rest with equal weight upon the shoulders of all. Equality of opportunity does not mean equality of responsibility. All Americans must be responsible citizens, but some must be more responsible than others, by virtue of their public or their private position, their role in the family or community, their prospects for the future, or their legacy from the past.

“Some must be more responsible than others.” This is such an interesting observation, especially when viewed through a contemporary lens. Nowadays, we no longer seem to speak this language at all. Our arguments about the obligations of the “uber-haves” are inexorably (and seemingly exclusively) connected not to service but to money, things like taxes and preferential legislative treatment. As to the “intellectual elites,” too many of us are tied up in self-congratulation that turns to entitlement. Our public-spiritedness is limited to those things from which we will benefit—schools and athletic facilities (until our kids graduate), libraries, museums and cultural centers that we patronize. Sometimes, what we give is not a gift at all—it’s a license to demand preferential treatment when public policy choices are being made.

Kennedy would never have accepted this. His sense of duty was, like many of his generation, more acute and personal. Roughly 70% of the members of Congress were veterans, and if you were a man and not a Vet, you needed a very good reason for it. Kennedy himself was a war hero, and he had lost an older brother, Joe Jr., in World War II when the experimental “drone” he was flying exploded prematurely. Service wasn’t just an abstraction, like mere patriotic words. Rather, JFK’s conception of service was a giving of yourself to an ideal, to your community, to your fellow citizen, to your country.

You have responsibilities, in short, to use your talents for the benefit of the society which helped develop those talents. You must decide, as Goethe put it, whether you will be an anvil or a hammer, whether you will give to the world in which you were reared and educated the broadest possible benefits of that education.

Kennedy pivots from the general to the specific. How must this audience of educated citizens serve.

Of the many special obligations incumbent upon an educated citizen, I would cite three as outstanding: your obligation to the pursuit of learning, your obligation to serve the public, your obligation to uphold the law.

Again, JFK voices a concern that has a very contemporary feel to it. Defend education from those who will try to dumb it down and tear it down.

If the pursuit of learning is not defended by the educated citizen, it will not be defended at all. For there will always be those who scoff at intellectuals, who cry out against research, who seek to limit our educational system.

Kennedy was speaking to a seemingly perpetual reality; the potent emotional argument, articulated in Richard Hofstadter’s 1963 Anti-intellectualism in American Life, that education was actually something pernicious. Science was bad, the humanities a sign of weakness, the educated snobbish, detached, and, when put in charge of anything, technocratic. In short, the egghead was neither a doer nor a person of conviction, but rather a shadowy figure, possibly insidious, corrosive of manly virtues, and thoroughly lacking in common sense.

Kennedy explicitly rejects this, asserting that knowledge is essential to democracy:

[T]he ignorance of one voter in a democracy impairs the security of all, and [] if we can, as Jefferson put it, ‘enlighten the people generally … tyranny and the oppressions of mind and body will vanish, like evil spirits at the dawn of day.’

Kennedy wasn’t done calling upon his audience:

[T]he educated citizen has an obligation to serve the public. He may be a precinct worker or President. He may give his talents at the courthouse, the State house, the White House. He may be a civil servant or a Senator, a candidate or a campaign worker, a winner or a loser. But he must be a participant and not a spectator.

If Kennedy had lived to see social media, would he have thought the constant online commenter (or author of an article such as this) a “participant”? I don’t think so. Service is not sport; it is giving something, with the only payback expected a sense of satisfaction. Service is communitarian in the best sense of the word. Service is not good intentions without action, it is commitment at a cost, and a cost willingly paid.

I would hope that all educated citizens would fulfill this obligation—in politics, in Government, here in Nashville, here in this State, in the Peace Corps, in the Foreign Service, in the Government Service, in the Tennessee Valley, in the world. You will find the pressures greater than the pay. You may endure more public attacks than support. But you will have the unequaled satisfaction of knowing that your character and talent are contributing to the direction and success of this free society.

“You may endure more public attacks than support.” How incredibly (and tragically) prescient. I don’t think we need much more commentary than that.

[F]inally, the educated citizen has an obligation to uphold the law. This is the obligation of every citizen in a free and peaceful society—but the educated citizen has a special responsibility by the virtue of his greater understanding.

Kennedy is not talking about jaywalking here. He is getting at something bigger, the struggle between the federal government and those states resisting desegregation. It’s an interesting framework—Kennedy is not trying to inspire, as Lincoln did at Gettysburg, by referring to Jefferson’s majestic words in the Declaration of Independence: “all men are created equal.” Instead, he is connecting citizenship to respect for the law.

He knows that law is the adhesive force in the cement of society, creating order out of chaos and coherence in place of anarchy. He knows that for one man to defy a law or court order he does not like is to invite others to defy those which they do not like, leading to a breakdown of all justice and all order. He knows, too, that every fellowman is entitled to be regarded with decency and treated with dignity. Any educated citizen who seeks to subvert the law, to suppress freedom, or to subject other human beings to acts that are less than human, degrades his heritage, ignores his learning, and betrays his obligation.

Certain other societies may respect the rule of force—we respect the rule of law.

For Kennedy, essentially a gradualist with an eye towards the 1964 election (and the need for Southern votes), it is perhaps the only framework he can use with conviction. However a person feels about minorities and minority rights, Americans are committed to the rule of law, and the world judges us on whether we are capable of holding to that standard. In May of 1963, we weren’t there.

The Nation, indeed the whole world, has watched recent events in the United States with alarm and dismay. No one can deny the complexity of the problems involved in assuring to all of our citizens their full rights as Americans. But no one can gainsay the fact that the determination to secure these rights is in the highest traditions of American freedom.

In these moments of tragic disorder, a special burden rests on the educated men and women of our country to reject the temptations of prejudice and violence, and to reaffirm the values of freedom and law on which our free society depends.

And, with that, Kennedy, having made his last points, moves to generic closing remarks. I don’t think he needed to do more.

We do. I wonder, if you took the text of this speech, scrubbed the references to Vanderbilt and the Tennessee statesmen, and republished it under another name, how people across the political spectrum would react. I suspect it would anger many, and for all the wrong reasons.

Professor Sabato has a pinned JFK quote on his Twitter account:

“The hottest places in hell are reserved for those who, in times of great moral crisis, maintain their neutrality.”

We are in those times.

The full text of the address may be found at the website of the John F. Kennedy Presidential Library and Museum.

This essay was first published on 3quarksdaily.com on December 6, 2021

https://3quarksdaily.com/3quarksdaily/2021/12/the-demands-of-citizenship-jfk-at-vanderbilt.html

please follow syncopatedpolitics on twitter at @SyncPol

 

Tuesday, February 15, 2022

A Ballad For America?


Do we Americans really have a shared, founding mythology that unites us in a desire to work together for the common good? 

I wrote that, last month, in “The Coupist’s Cookbook,” and was challenged in an email by a friendly but dubious reader.   

Do we have a common history, a type of universal “origin story”? Does that make for a compact, of the type the signers of the Declaration of Independence acknowledged, when they pledged their “lives, fortunes, and sacred honor”? Aren’t we the heirs to that bundle of benefits and burdens? Finally, to explore further the implication of my correspondent’s email, if that “deal” no longer applies, how do we coexist and maintain a government in which we can freely express ourselves and choose, and change, our leaders?

I don’t have easy answers.  I’ve written roughly a dozen pieces for 3Q in the last few years about Washington, Adams, Jefferson, Lincoln, and FDR.  Although those great men have to have believed in it, and I believe in it, I don’t know that it’s at all communicable or even comprehensible to someone of a different age, different political views, or different education. With no other place to look, I reached back to my parents’ generation, which seemed to do all these civic things so much better, and found something in, of all places, a song.

In 1939, the Federal Theatre Project, a New Deal Program with a mandate to fund live performances for an audience without much disposable income, and to provide jobs to a Depression-decimated artistic community, mounted a production of a new Broadway revue, Sing for Your Supper. The finale was a patriotic appeal in the form of a duet—“Ballade of Uncle Sam” (music by Earl Robinson, lyrics by John La Touche). 

Sing for Your Supper ran for 60 performances, closing only when a timorous Congress, concerned about possible “infiltration” of the arts by Communists, cut off funding for the entire FTP program. Producer Norman Corwin then offered “Ballade of Uncle Sam” to CBS, which liked the sound and the sentiment. It had Robinson rearrange it as a solo and chorus piece, and renamed it “Ballad for Americans.” The legendary singer and actor Paul Robeson was hired to perform it.

“Ballad for Americans” had its first airing (live, of course, with the CBS Studio orchestra and chorus) on November 5, 1939. The impact was instantaneous and extraordinary. There are stories of the phones and phone switchboard operators at CBS being overwhelmed by callers. Enthusiasm was so great that they repeated the performance on New Year’s Eve. The public couldn’t get enough, so, in February 1940, Robeson and the American People’s Chorus recorded it (on 78s) for Victor Records, and, a few months later, Der Bingle himself (Bing Crosby, the most popular singer in America) cut his own version for Decca Records. Then, in one of the more ironic moments in American politics, it was played at two Presidential nominating conventions—Republican and Communist. 

Why the popularity? What raised it from being a pleasant, niche ditty that you might see performed at a high school graduation, to a phenomenon? Some of it can surely be ascribed to the times. The Germans had invaded Poland on September 1, 1939, and then, on May 10, 1940, began a march through much of Western Europe with incredible (and menacing) speed. In the Far East, Japan had been flexing its muscles continuously in China, Manchuria, and Korea since the early 1930s. Conflict with the United States seemed inevitable. Finally, at home, a strong strain of isolationism tied FDR’s hands, while economic recovery sputtered. By 1940, American GDP had barely recovered to December 1929 levels. Optimism was difficult.  

“Ballad For Americans” filled a space in people, gave them a sense of belonging, linked them to the heroic past, and told them they could be part of the future. Even now, dated though it clearly is, it retains a certain potency. Take 10 (or 20) minutes away from whatever political distractions you engage in and listen to it. I’ve included links to both the Robeson and Crosby versions; both use nearly identical lyrics (later performers would often include contemporary references), and both run almost exactly 10 minutes. The difference is in shading and delivery, but both carry a message of pride and hope.

Bing’s is the smoother of the two, a bit more lushly arranged and orchestrated, and includes Crosby’s vocal tricks like his croon/warble and his deft way of sliding into the sound of others. It’s also a little more emotionally light, closer to Crosby’s public image of accessibility. His voice softens some of the tougher portions, taking the sting out of phrases that might otherwise draw fire. If there’s a weak spot, it’s in the accompanying Ken Darby Singers—they almost sound too professional, too bright. Still, it’s an admirable presentation and even a little bold for Crosby, given some of the content. 

The Robeson version is the one I grew up with, the one I sang to with my parents and sister. The recording quality isn’t quite as good; you can hear the technical limitations, particularly with the brass. That quickly becomes irrelevant when you are presented with the immense power of Robeson’s vocal presence. His bass-baritone, placed more in a call-and-response setting than Bing’s, and with a chorus that sounds a little more real-person, creates a dialog that builds relentlessly in both volume and emotional depth. If the opening seems a little hokey to you, be patient with it and put aside your cynicism. Robeson and the chorus have their own story to tell, and one of the bits of magic they manage to pull off is to sing it as if they were speaking from personal experience.  

I prefer the Robeson recording, with his insistent, pile-driver of a voice, but both Robeson and Crosby put the message over beautifully. Look at some of the Robeson/Crosby lyrics and you can see that the basic premise is simple: An unnamed stranger appears to a crowd, and they all have what amounts to a conversation about themselves and their pasts. There are predominant themes that are distinctly American virtues:  First, we are not an aristocracy, our history is made by people both great and modest, so our efforts are communal, and our victories communal. Second, we succeed despite having to climb a mountain of skepticism (“Nobody who was anybody believed it, Ev’rybody who was anybody, they doubted it.”).  Third, our goals have civic and political virtue—independence and what it brings (“We hold these truths to be self-evident, That all men are created equal.”).  Further, we self-correct—we don’t just free the slave, we recognize injustice (“Man in white skin can never be free, While his black brother is in slavery.”) And we grow, we always push forward—the pioneers, the Gold Rush, expansion West, railroads, giant cities, taking on big challenges in war and peace. For all that, there are still naysayers, yet we still persevere and seek our own path (“And they are doubting still, And I guess they always will, But who cares what they say, When I am on my way—”).

It’s a potent set of images, and the crowd comes together, connects. But, who is the stranger? Where does he come from? What does he do? He tells them he does everything, every type of job: “Engineer, musician, street cleaner, carpenter, teacher…” He’s the everybody who is nobody, the nobody who is everybody:  “[T]he ‘etceteras’ and the ‘and so forths’ that do the work.” This strains credulity, so they call him on it: “Now hold on here, what are you trying to give us? Are you an American?” He’s an American. Not only does he do everything, he’s also of all races and religions and national backgrounds. He is them, and they are him. They are a community. So it should be, because he, and they, and America itself still have things to do. They will keep the faith, as “her greatest songs are still unsung.” And, as always, they will do it all together, and will overcome:

Solo: Out of the cheating, out of the shouting. Out of the murders and lynching

All: Out of the windbags, the patriotic spouting, Out of uncertainty and doubting, Out of the carpetbag and the brass spittoon, It will come again. Our marching song will come again!

It can be done because they possess a character that is “[d]eep as our valleys, High as our mountains, Strong as the people who made it.” The last question is resolved. The stranger, the crowd, and even the audience are all Americans, with a destiny of communal greatness. They need only choose it, and work for it. 

I don’t know if this satisfies my reader, but, if we are to find our way back from this chasm we are in, there is going to have to be something in those ten minutes to still hold onto. For now, this is the best answer I can offer. 

Epilogue:  Bing Crosby was named Most Admired American in 1948, but “Ballad For Americans,” like Paul Robeson himself, eventually got caught in politics. He continued to speak (forcefully) for the cause of freedom at home and abroad, and campaigned on behalf of Henry Wallace and his Progressive Party in 1948. Opposition to him intensified in the later 1940s, causing the loss of local performance venues, and, in some places, “Ballad For Americans” became an unwanted stepchild, with scores in school districts tossed or ripped from larger songbooks. Robeson himself became a lightning rod for protests and violence. In August 1949, his potential headlining at a benefit concert for the Civil Right Congress in Peekskill, New York, led to a postponement after the audience was attacked with rocks and bottles by locals. A second concert, on September 4, 1949, that included Pete Seeger and Woody Guthrie, went off without incident, until it  ended, and then both audience and performers had to run a gauntlet of protests along the road home. Up to 140 people were injured while law enforcement mostly stood by. In the 1950s, Robeson was blacklisted and his passport revoked, stilling, for a time, at least his artistic voice. His passport was eventually restored, after the Supreme Court’s 1958 ruling in Kent v. Dulles that the right to travel is an inherent element of “liberty” that cannot be denied to American citizens. After that, Robeson mounted a comeback abroad, but time, and the pressure, took their toll on him, and he suffered a series of health crises. He lived roughly the last 15 years of his life in comparative seclusion, first with his wife Essie and then, after she passed, with his son, and then his sister, never performing in public again. He died January 23, 1976. In death, he was embraced in ways often denied him in life: an award from the United Nations General Assembly for his work on Apartheid, entrance into the College Football Hall of Fame (he had been an All-American at Rutgers), a Lifetime Grammy, and, a little improbably, in 2004, his face on a 37-cent stamp. 

In The Essential Paul Robeson, there’s a track of him performing Othello’s final soliloquy. The first few lines seem somehow appropriate for this great and tragic personality.

Soft you; a word or two before you go. I have done the state some service, and they know’t. No more of that. I pray you, in your letters, When you shall these unlucky deeds relate, Speak of me as I am; nothing extenuate, Nor set down aught in malice: then must you speak, Of one that loved not wisely but too well.

A Ballad For America? first appeared on 3quarksdaily.com on November 8, 2021

https://3quarksdaily.com/3quarksdaily/2021/11/a-ballad-for-america.html