{"id":1149,"date":"2010-08-01T22:00:37","date_gmt":"2010-08-02T03:00:37","guid":{"rendered":"https:\/\/thebigpictureandthecloseup.com\/?p=1149"},"modified":"2010-09-06T20:04:34","modified_gmt":"2010-09-07T01:04:34","slug":"in-praise-of-foreign-moods","status":"publish","type":"post","link":"https:\/\/thebigpictureandthecloseup.com\/?p=1149","title":{"rendered":"In Praise of Foreign Moods"},"content":{"rendered":"

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In Praise of Foreign Moods<\/h2>\n

Published in The Daily Record August 2, 2010<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Justice Thomas has said,[1] while ignoring the views of other countries about some aspect of criminal punishment, that courts should not \u201cimpose foreign moods, fads, or fashions on Americans.\u201d Justice Scalia quoted the phrase[2] to resist decriminalization of homosexuality.\u00a0 How far we have come from the words of Thomas Jefferson in the Declaration of Independence extolling \u201ca decent respect to the opinions of mankind\u201d![<\/a>3]<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 To me it\u2019s obvious that we should attend to what other countries do and think \u2013 just as they should be looking at us.\u00a0 Nobody\u2019s too dumb to teach or too smart to learn.\u00a0 American \u201cexceptionalism\u201d rarely has much to recommend it.\u00a0 Two recent news stories have illustrated that for me.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 But first \u2013 a story of my own.\u00a0 When I was four my mother and I were guests at a Carmelite monastery for a month.\u00a0 I was told before we arrived that all the nuns would be veiled, and you could not see their faces, though at the time we were welcomed the mother superior took the veil away so as not to frighten me.\u00a0 The rest of the time I did not see any of their faces, or, I guess, much else of them.\u00a0 I\u2019m sure there were some in that era, inclined to view \u201cPapists\u201d with distrust, who heartily disapproved and found the Carmelites\u2019 habit a little sinister.\u00a0 But surely nobody seriously considered telling the good nuns they couldn\u2019t dress that way.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 I thought of this experience when reading about France\u2019s headlong drive to ban the burqa<\/em><\/a>, a similar form of garb: a religiously-inspired complete covering of the body and face of a woman.\u00a0 I am quite certain that even with our nation\u2019s current conflicts with Muslim zealots and, some say, with Islam itself, such a ban would run smack up against the Free Exercise clause of our First Amendment<\/a>.\u00a0 We might require driver\u2019s license photos or make other reasonable exceptions, but we wouldn\u2019t forbid the burqa<\/em> outright.\u00a0 That kind of garb just never has been and never would be a big deal here.\u00a0 But France is making an issue of it.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 There has been excellent blogging on the subject by Martha Nussbaum on the New York Times website,[4]<\/a> which I shall not attempt to duplicate or summarize.\u00a0 But among other things, Nussbaum points out the subtle differences in U.S. and French constitutional culture which enable the different results.\u00a0 The U.S. First Amendment is neutral, not only among religions, but also between religion and atheism.\u00a0 French law, on other other hand, is vigilant to shield the nation from the heavy hand of religion, and while atheism is not compelled, it is protected in a way that faith is not.\u00a0 For France to legislate against religious observance is acceptable in a way it would never be here.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Meanwhile, there is a strong sense that the state has a right to compel newcomers to adopt culturally French ways.\u00a0 We Americans flirt with formally requiring English; this is mild compared with what France does, exerting many legally permissible pressures on French immigrants to assimilate.\u00a0 Perhaps not surprisingly, it doesn\u2019t succeed all that well.\u00a0 Blame the heavy-handedness, plus the unwillingness to have immigrants add their own flavors to French culture.<\/a>\u00a0 By contrast, every group that comes to the U.S. ends up culturally American in a couple of generations, but enlarges and amends what it means to be American in the process.\u00a0 Accepting that amendment is part of America\u2019s secret of success.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The moral?\u00a0 France would do well to study and internalize some American First Amendment values.\u00a0 It\u2019s going to do no damage to France to have the occasional burqa<\/em> on the street.\u00a0 (French police estimate there are perhaps 2,000 burqa<\/em> wearers in the country.)<\/a>\u00a0 The refusal to allow it may well cost lives, and paradoxically slow down the integration of Muslim immigrants into the French mainstream.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 We too have things to learn.\u00a0 We received a subtle rebuke from the Swiss courts three weeks ago, when they set Roman Polanski free.\u00a0 (If you just came in, Polanski, a renowned director, raped a 13 year old in 1977, and served 42 days before being released, but fled when it seemed likely the judge was going to go back on a promise to give no more jail time.\u00a0 He has lived and worked since in countries where he felt safe from extradition.\u00a0 Switzerland had seized him, however, to entertain an extradition request.<\/a>)<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0The stated reason <\/a>\u00a0the Swiss gave for freeing Polanski was that the authorities seeking Polanski\u2019s expatriation had failed to provide transcripts of testimony by a prosecutor concerning sentencing negotiations at the time of the original trial.\u00a0 The transcripts would likely have confirmed the contours of the original sentencing deal, relevant under Swiss extradition law, but also, not coincidentally, relevant to the whole reason Polanski had run.\u00a0 In other words, the Swiss would not turn over Polanski without paying some heed to the judicial misconduct.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Los Angeles prosecutors had been trying to put issues in the opposite order: Polanski\u2019s fugitive status here and now, the judicial bad faith to be resolved later, maybe.\u00a0 This order envisioned Polanski as burdened with an ineradicable stain that blotted out his own claim for justice \u2013 at least in the extradition proceeding.\u00a0 The Continental view shies away from this rigidity, and the Swiss ruling echoed it.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Europeans have the better of this difference.\u00a0 However bad what the Polanski of 1977 did was \u2013 and it was \u2013 you cannot punish him.\u00a0 He no longer exists, worn away by half a lifetime of subsequent experiences and choices.\u00a0 The offender escaped, and in truth cannot be recaptured, even if today\u2019s Roman Polanski were put in prison.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The real question was much more complex: how do you respond to demands to put in jeopardy of imprisonment a man who a) committed a serious crime 33 years ago but has done nothing similar since; b) was apparently the victim of an intended judicial doublecross that might or might not be rectified were the fugitive rendered up; c) has been making a major creative contribution to society; and d) whose victim has publicly stated she wants the matter dropped<\/a>?<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Long ago the Continental view was crystallized in Victor Hugo\u2019s Les Miserables<\/em>.\u00a0 To the implacable Inspector Javert, once Jean Valjean had committed a crime, he had placed himself in a category from which he could never escape, come what might, and he needed to be pursued and exiled from society.\u00a0 However admirable Javert\u2019s zeal for the law, he remains the villain of the piece, and Valjean the hero.\u00a0 The correct moral calculus, in Hugo\u2019s view, rested on the totality of circumstances, not broad and rigid categories.\u00a0 Javert\u2019s villainy stemmed directly from his inability to see matters that way.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 There is something awfully Javert-ish, and not all that atypical of U.S. law enforcement, about the way the Los Angeles prosecutors are behaving this time.\u00a0 And it looks as if the Swiss court saw that, and called them on it.\u00a0 I suspect most Europeans who cared were cheering them on.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A teachable moment, if those prosecutors are willing to learn.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 As I say, we should all be learning from each other.<\/p>\n

Copyright (c) Jack L. B. Gohn<\/p>\n

\u00a0<\/p>\n

[1].\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Foster v. Florida<\/em>, 537 U.S. 990 Note, 123 S.Ct. 470 Note (2002) (Thomas, J. concurring)<\/a>.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/p>\n

[2].\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Lawrence v. Texas<\/em>, 539 U.S. 558, 597, 123 S.Ct. 2472, 2495 (2003) (Scalia, J. dissenting)<\/a>.<\/p>\n

[3].\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In fairness, there is no suggestion by either Thomas or Scalia that they would consider it illegitimate for legislatures or members of the executive branch to consider foreign examples.\u00a0 The rule of disregard they would urge probably would affect just the courts.\u00a0 The Continental Congress which promulgated the Declaration was more akin to a legislature than to a court.\u00a0 But even granting the distinction, the difference in tone describing foreign outlooks (Thomas belittling, Jefferson respectful) is unsettling.<\/p>\n

[4].\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 See http:\/\/opinionator.blogs.nytimes.com\/2010\/07\/11\/veiled-threats\/?scp=1&sq=nussbaum%20burqa&st=Search<\/a> and http:\/\/opinionator.blogs.nytimes.com\/2010\/07\/15\/beyond-the-veil-a-response\/?scp=2&sq=nussbaum%20burqa&st=Search <\/a><\/p>\n

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We should attend to what other countries do and think \u2013 just as they should be looking at us. Nobody\u2019s too dumb to teach or too smart to learn, whatever Justices Thomas and Scalia may say. As antidotes to “exceptionalism,” consider the burqa — and consider Roman Polanski.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[1118,1130,1127,1123,1122,1121,1120,1142,1117,1116,1119,187,1114,1115,1141,964,1128,1131,1133,1132,1139,1140,147,196,146,742,883,1138,1136,1129,780,1124,1125,1135,1126,793,1134,306,1137],"class_list":["post-1149","post","type-post","status-publish","format-standard","hentry","category-bigpicture","tag-american-exceptionalism","tag-assimiliation","tag-burqa","tag-carmelite-habits","tag-carmelite-monastery","tag-carmelite-nuns","tag-carmelites","tag-continental-congress","tag-decent-respect-to-the-opinions-of-mankind","tag-declaration-of-independence","tag-exceptionalism","tag-first-amendment","tag-foreign-law","tag-foreign-moods","tag-foster-v-florida","tag-france","tag-free-exercise-clause","tag-french-culture","tag-french-police","tag-immigrants","tag-inspector-javert","tag-jean-valjean","tag-justice-antonin-scalia","tag-justice-clarence-thomas","tag-justice-scalia","tag-justice-thomas","tag-lawrence-v-texas","tag-les-miserables","tag-los-angeles-prosecutors","tag-martha-nussbaum","tag-new-york-times","tag-nuns-habits","tag-papists","tag-plea-bargain","tag-roman-catholics","tag-roman-polanski","tag-switzerland","tag-thomas-jefferson","tag-victor-hugo"],"_links":{"self":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/1149","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1149"}],"version-history":[{"count":17,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/1149\/revisions"}],"predecessor-version":[{"id":1163,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/1149\/revisions\/1163"}],"wp:attachment":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1149"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1149"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1149"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}