The Big Picture and the Closeup

SUBCREATION: FROM EDEN TO THE NEW JERUSALEM:

Genesis Chapters 1 through 3                    

Easter 2007

          The wonderful first three chapters of Genesis — two of which we have just read — attempt to grapple with some huge questions: among them where everything that is came from, including but not limited to us; the role of God in bringing about that everything; and our relationship to God on the one hand and to all the rest of everything that is on the other.  There’s cosmology, ontology, theology, and ecology thrown in. 

          There’s been quite a change in the way we’ve read this text since about the 6^th Century B.C. when it took final written form.  To reduce it to the simplest terms, we humans have been repeatedly demoted.  The authors of Genesis saw us being at both the physical and moral center of the universe.  Genesis depicts a bubble in the waters, at the bottom of which is planted a flat earth for us to stand on.  And over it the sun, moon and stars are posted to give us light and tell us the time.  In the very midst of it is planted mankind — us — with dominion – that’s the exact word – over all the creatures a benevolent God has put there, apparently for our benefit.  In modern parlance, it’s all about us – well, all about God and us.  But we are made in God’s likeness, we are given dominion, and even the power to name the creatures.  That naming business is no small matter.  In ancient thinking, names were powerful, not mere arbitrary semiotic markers.  Think of the mystical air of taboo surrounding the name of God himself in the Old Testament.  The person in charge of giving names was powerful indeed.  That person was us. 

          Now let’s talk about Genesis Chapter 3, which we didn’t read, but of course we all know intimately.  The thrust of that Chapter is explaining why things are wrong in this perfect world.  The main thing that ostensibly goes wrong is that death is introduced into the world.  We know, of course, that it’s probably bad theology to say we introduced death into the world.  Death was here millions of years before the first human being drew breath.  In fact it was an essential, and if I may use the word, vital part of creation.  Death, sad as it is, really isn’t the biggest problem the author of Genesis Chapter 3 is trying to address.  The biggest problem is that we humans keep screwing things up, and this has been an open scandal from the moment we looked around and took account of ourselves.  Because of that, however, the expulsion from Eden, bad as it is, doesn’t really demote us from the center of creation in our own eyes.  In fact, in Genesis Chapter 2 there’s a solid hint of that in the description of the rivers in the Garden of Eden, one of them described in the present tense.  In other words, Eden’s rivers are still places we can go.  Eden is a blessed state we wish we could be in but aren’t, but geographically and physically it’s part of exactly the same world, with all the good things that God has made for us, and we are in still in the middle of it.  And the world and the universe are still really about us. 

          Since then, however, our views of our position have degraded.  The Garden of Eden, set in the center of Asia Minor, is no longer at the center of things when you start taking into account — as our forbears in the Roman empire did, for instance, the entire Mediterranean basin – let alone when you discover, as our Renaissance forbears did, the rest of our round globe which has no geographic location of greater dignity than any other.  Let alone if your point of reckoning and reference is where some other civilization began.  It’s worth noting that the Chinese – similarly — viewed themselves as the Middle Kingdom and have had to accept a similar geographic demotion. 

          And as for that neat little dome of water snugly bounding our world, it was replaced, even in ancient cosmology, with a series of spheres thought up by the astronomers of the time to explain the complex interplay of stars and planets – an interplay that was just not compatible with all that snugness.  Then as the Renaissance proceeded we assumed the uncomfortable awareness that the planets were in some measure worlds like our own, and then that the stars were suns like our own, but much further away.  As more time went by, we began to recognize the vastness of galactic and intergalactic space, and to acknowledge that we were not particularly close even to the heart of our own galaxy, which in turn is only one galaxy among millions if not billions.  The universe as we now know it gives no signs of being in any meaningful sense about us, although as yet we have no remotely reliable indication that anything else like us exists out there.  Not that we would be surprised to find that there were.  And probably, if that were the case, we’d also learn that our extra-terrestrial cousins had their own relationship with God, perhaps even their own redeemer. 

          Down the rabbit-hole we have gone.  Originally confident that we had dominion, we went about altering our world to suit ourselves.  Ancient farming practices probably contributed much, for example, to the growth of the deserts of the Middle East, and to the deforestation of Iceland.  And that was just a warmup, before the Industrial Revolution.  Once we really got to work, we set about building the vast interplay of mining, transport, fabrication, and commerce that created our modern world.  But we lost self-confidence at every step.  The poet William Blake, perhaps the single poet who had most internalized and most thoroughly incorporated the cadences of Biblical style and diction into his own writings, spoke broodingly of the “dark Satanic mills” of the late 18^th Century.  The labor that went to build this world, far from being mankind’s collaboration with its Creator, was decried by Karl Marx as meaningless, as alienating us from ourselves.  Our wars, once viewed as crusades or jihads, touched with divine meaning, came to be viewed by the sophisticated among us as little more than the usual realpolitik tinctured with atavistic bloodlust. 

          Likewise, we have suddenly become aware of our destructive power in the world, and not only from our weapons of mass destruction.  It is our necessary consumption and our unnecessary consumption alike, that we now recognize as the engines of blight.  We tear up the landscape, pollute the rivers and the skies, deplete the lands of minerals, and overfish the waters, all in the name of acquiring necessities and comforts.  Species are dying off every day, we are told, because of what we do.  Can anyone seriously view humanity, the destroyer of planetary resources and balance, as central to the divine plan?  Would it not be nearer the truth to view us as the central to some Satanic plan instead?  And would it not make greater sense to say that we are not the center but the enemy of the center of creation?  How fortunate that we are quarantined here on an insignificant planet in an insignificant galaxy!  Think of what we might do with greater scope — with greater importance! 

          So, in keeping with the new view, when we read the Genesis story, as we do each Easter vigil, we tend to lapse into a kind of Manichaeanism: God good, the universe good, Nature good – Mankind bad.  We do the Creation Story each year at the vigil, and it seems to call forth the slide show impresario in many of us — as you will see it has in me.  And I want to say first of all that those slide shows are always wonderful and moving, and I hope I prove worthy of the tradition tonight.  All the same, the other slide shows have not been untouched by the  Manichaeanism of which I speak.  We see pictures of the glories of nature or of interstellar space or we listen to the creation myths of humans who have shown greater respect for the natural order, like Native Americans.  Usually there is little role for humankind in the images.  We see oceans without sails, forests without houses, fields without farmers, hillsides without power lines or ski slopes, all manner of creatures unaccompanied by men or women, galactic phenomena infinitely too vast for human scale.  Why would it be otherwise?  We humans are a blot and an embarrassment on the face of God’s lovely creation.  Are we not?  Best to keep us offstage. 

          Well, not if we take Genesis seriously.  It says: “God created man in his image; in the divine image he created him; male and female he created them.”  We are free to disagree with that, but we can hardly avoid acknowledging its meaning.  Our modern views are, to be blunt, on a collision course with the views of the author of Genesis on the critical question of the meaning and value of humanity.  Also on the role of humanity as a consumer of the benison of Nature.  God says: “Be fertile and multiply; fill the earth and subdue it.  Have dominion over the fish of he sea, the birds of the air, and all the living things that move on the earth.”  And God says: “See, I give you every seed-bearing plant over all the earth … to be your food.”  And to me most telling of all is the business about the naming.  The phrasing is important.  God brings each of the animals to the man “to see what he would call them.”  If the name is part of the essence of a creature, then we have to read this passage as God delegating to mankind part of the role of defining the essence of the beasts.  God finds out the fullness of their meaning from us, not the other way around.  Think about it: God is handing off the business of creation to mankind, to us. 

          Let’s think also about what happens after Eden.  Adam and Eve go marching out the gate to – to where?  I submit that they go to set up the habitations of humanity.  And while there are some indivisibly bad ones like Sodom and Gomorrah, the Bible views most cities as flawed but redeemable.  Think of Jonah sent to redeem Nineveh.  And think clear from the very beginning to the very end of the Bible.  Think about almost the last image in the book of Revelation: the New Jerusalem, gleaming with jewels, actually characterized as the wife of the Lamb.  The habitation of men was also the point of union between all creation and its God.  In the Biblical view, we began at the center and we remain there to the very end of time. 

          So in the Biblical view, we belong here.  We are not interlopers in Creation.  With everything wrong with us, everything allegorized in the story of Adam and Eve’s Fall, we still belong here.  And we are still the ones in charge – in charge of getting to – in fact in charge of creating the New Jerusalem.  And I maintain that you can’t seriously look into your heart and deny it.  “What a piece of work is a man,” Shakespeare said so truly: “how noble in reason! how infinite in faculty! in form and moving how express and admirable! in action how like an angel! in apprehension how like a god!”  Our works are mighty for good as well as bad.  And what we do does carry on the work God did in those seven great days of Genesis – as I hope to show you in detail in a few minutes.  God’s creation hasn’t stopped at all; we’re in charge of much of the work. 

          The kind of work we do is what the poet Coleridge called Subcreation.  He may have meant something slightly different by the term, but I think it is a useful one for present purposes.  It is the taking of the created world and fashioning something else from it – hopefully something better. 

          Now think about that image of the New Jerusalem.  I have been planning this homily for a while.  Given the events of recent days, I experienced a moment of dismay thinking about what a discordant note the mention of Jerusalem must strike, with all the killing going on there as we speak – killing for the very possession of Jerusalem.  But then I realized it was ever thus.  The history of Jerusalem has always been one of bloodshed and chaos.  And when the author of Revelation set pen to paper, Jerusalem was less than twenty years removed from some of bloodiest destruction in its history.  Today’s suicide bombers have nothing on the Roman legions.  The choice of Jerusalem as the symbol of the joyous and complete fulfillment of history would have been just as jarring then as it is today.  You can almost hear the first readers wondering how the New Jerusalem could ever evolve from that. 

          The fact is, using that God-given and Godlike creativity, it is our continuing role to take on that huge challenge and to subcreate the New Jerusalem from the present fallen one – wherever our particular fallen Jerusalem happens to be.  For the poet William Blake, the site of the New Jerusalem was England.  And he asked himself exactly the same question the readers of Revelation must have asked themselves – how on earth do we get there from here?  Let me read you his answer to himself in his poem, fittingly called The New Jerusalem. 

          The New Jerusalem, then, will be London, will be Jerusalem itself, will be Baltimore.  It will be built in the habitations of men and women as well as in those parts of Nature we do not touch.  When we turn to God with all our hearts, we will subcreate it from the elements of this world with which we are already inextricably entwined.  That subcreation is in progress, has been in progress for millions of years and may continue for millions more. 

          For our meditation, then, I would like to present you a series of images showing how Man has carried on the creativeness of the God who largely handed his creation off to us.  The seven days of creation continue through us, through our work, through our play, through our exploration and our prayer and our invention and our love for each other.  We are not at all perfect, but we are divine.

Easter 2006

Abraham and Isaac: Deciding About Sacrifice

          I start with a quote from Bob Dylan that makes light of a horrible dilemma: 

Oh God said to Abraham, “Kill me a son”
Abe says, “Man, you must be puttin’ me on”
God say, “No.” Abe say, “What?”
God say, “You can do what you want Abe, but
The next time you see me comin’ you better run” 

          Well may Abe say What?  How could God make such a demand?  And how should Abraham behave when faced with a choice between his obligation to God and ordinary human decency, a choice that seems to contradict not only God’s explicit and specific promises to Abraham but also God’s nature?  When God acts like a monster, are we supposed to act like monsters too? 

          There seem to be few ways of reading the story in which Abraham and God don’t both turn out to be monsters. And that may be the very reason it has relevance for us today. 

          To be fair, the text may be harder to read because of the way it was obviously assembled. Like other biblical texts from Genesis, the stretch from Chapters 12-25, covering Abraham, appears to be constituted from several different tellings of the tale.  If you try to read it as a coherent story, both God and Abraham seem to suffer from repeated amnesia.  God keeps promising Abraham limitless descendants who will rule the land of Canaan.  This is promised as a reward for different things, first in Chapter 12 as a reward for emigrating from Ur, then as a reward for an animal sacrifice in Chapter 15, then as a reward for entering the covenant of circumcision in Chapter 17, and then again in Chapter 22, apparently as a reward for being willing to sacrifice Isaac.  Likewise, in Chapter 18, Abraham has his famous discourse with God, securing God’s consent to save Sodom if Abraham can find a diminishing number of good folks there, and yet in Chapter 19 God goes ahead and wastes the place anyhow. 

          Moreover, the psychological states of the characters are unfathomable.  How does Abraham feel subjectively about sacrificing his son?  The narrative never says.  It does go to considerable lengths to tell us the objective stakes.  God promises Abraham limitless progeny, and Isaac is the only legitimate child in sight, and the only one likely to emerge from the union of Abraham and the near-barren Sarah.  And only through legitimate progeny can the promise of limitless progeny inhabiting Canaan can be satisfyingly fulfilled.

           So it would seem, if only because God keeps bestowing it, that the promise that Abraham will become the father of a nation is an important one, a promise that Abraham the character in the story and the early Hebrews as an audience listening to the story would have held in great value.  There is no obvious prospect of the great promise being fulfilled if Isaac is removed from the equation.  So God’s directive to do just that, for Abraham to take out Isaac, is a command to destroy someone of huge importance, even if Abraham has no personal feelings for Isaac, and even if we ignore Isaac’s worth and his own personal feelings about being exterminated.

           But Abraham at least seems to have some inkling of the value of and respect to be paid to an individual.  That’s really the ethical given in Abraham’s debate with God in which he tries to save Sodom: that God should not be mowing down the good men even to get to the bad ones.  The good have value, and their lives are to be saved. 

          But taking the tale as a whole, humans per se possess at best inconsistent value, and the same is true with family ties.  The Abraham story is full of accounts of strong affection Abraham feels for Lot, Sarah, Hagar, and Ishmael.  So again, if we’re trying to see this as a coherent narrative, which it probably isn’t, Abraham is a man capable of feeling family affection. 

          The bottom line on this question, then, is that, taking the narrative at face value, we have at best only a muddy understanding of the full extent of what it would mean to Abraham personally to sacrifice Isaac.  But even setting aside everything questionable, at a bare minimum it would mean that Abraham would be destroying the only apparent means to the fulfillment of a critical promise, to the accomplishment, really of Abraham’s life’s work.  So even stripping away all the nonessentials, it would still be a cataclysm for him. 

          How then would Abraham and the readers of Genesis have viewed God’s demand that Abraham make this cataclysmic sacrifice?  Obviously here we would love to go beyond the mere text to get some context from the civilization from whence it sprang, perhaps 4000 years ago.  Unfortunately, that inquiry is a perilous one.  The Biblical texts are hopelessly conflicted about whether Yahweh ever accepted human sacrifice, and the archaeology about whether the ancients practiced human sacrifice is likewise hopelessly conflicted.  It may have been common, it may have been rare, it may even have been an ancient urban legend – human sacrifice may have been something that everyone accused others of doing but no one actually saw happening.  There are reputable archaeologists who believe each of these hypotheses. 

          And without knowing this elementary fact, we can have no idea what human sacrifice in and of itself would have meant to the first audience of the tale.  Would it have been something that helped the crops grow?  Would it have been a necessary propitiation for sin?  Would it have been a horrifying deviation from the norms of the culture?  We don’t know. 

          So appeal to the context isn’t going to help.  All we know is that God promises something important, and then seems to be ordering Abraham to destroy the only evident path toward fulfillment of that promise.  He endows Abraham with a firstborn legitimate son in a culture that placed enormous value on firstborn legitimate sons, and then tells Abraham to kill the son. 

          What kind of a monster does this make of God?  Take your pick. He could be one or more of the following charming things: 

*       a God who wants people to give up the things that are most important to them because he hates us 

*      a God prepared to break promises but subject to changing his mind 

*      a God who likes being obeyed regardless of whether it helps man or devastates him 

*       a God who likes to see people die before he extends benefits like the growth of crops necessary for their livelihood 

*       a God who just wants to test Abraham’s obedience because he values that obedience more than Abraham’s humanity 

*       a God who wants to test Abraham’s humanity because he values that humanity more than Abraham’s obedience 

*       a God who is not perfect but merely a work in progress who realizes he can’t go through with breaking his promises or being bloodthirsty. 

          The first of these I think we can dismiss out of hand.  If we believed that God hated us, we wouldn’t be here.  We might all go off and despair but we wouldn’t be in a church, much less a church informed by the teachings of the Jesus who called God abba.  The same with the God who doesn’t care about his promises to us. 

          The notion of a god or gods who must be propitiated in order to make good things happen is a very ancient one, and to the extent any sacrifices, be they human, animal, vegetable or mineral, were engaged in by the ancients, this seems to have been the animating thought most of the time.  But I can’t say I like this one either.  It makes God into a being we can control.  If we do x, God will do y, goes the thinking.  But that makes us greater than God, or at least puts us on a par with God.  That seems bogus.  

          There’s a more modern approach to sacrifice, which is not that it makes God more pliable but that it is simply good for us in the abstract, the way worship is good for us.  OK, then is the point that slaying your son and all of your hopes is good for you?  If so, why does God stop Abraham? 

          There are those who think God values unquestioning obedience, regardless of consequences.  But this seems rather unloving, and probably not the kind of God this congregation could bring itself to worship either.  We could ameliorate this picture by making up a story in which, if Abraham had gone through with the sacrifice, God would have given Abraham a replacement son, the way Job gets a new family to replace the family members God has killed off to test Job.  But the new family material at the end of Job is obviously not part of the original text and added on by what critic Harold Bloom rightly called a pious fool.  Family members aren’t fungible.  As C.S. Lewis observed while grieving the death of his wife: “Is God a clown who whips away your bowl of soup one moment in order to replace it with another bowl of the same soup?  Even nature isn’t such a clown as that.  She never plays exactly the same tune twice.” 

          What then of a God who merely wants to test?  In effect, he would seem to be demanding obedience or at least the readiness to obey, not necessarily a bad thing, but at the expense of family feeling, respect for human life, and reliance upon God’s own promises.  Obedience would then would seem to be sacrificing the greater good at a minimum for the lesser.  Abraham passes if he disobeys.  Well, if so, the biblical Abraham fails the test, and God has to step in and erase the wrong answer and fill in the right one. 

          On the other hand, if it’s a test in which the right answer is to obey, then Abraham passes the test but loses my admiration, and I would suspect the admiration of most of us.  A God who wants to be obeyed at such a cost also loses our admiration for the same reason that a God who truly wants human sacrifice loses our admiration: because he can’t see the value of human life. 

          What about a God who develops in the course of the story and comes to see in the very nick of time that the sacrifice is wrong?  Well, we’re certainly glad to see God come to his senses, but do we really want a God who only wakes up that near to the edge of irretrievable and ruinous folly? 

          Meanwhile, what about Abraham?  What kind of monster does the story make of him?  Take your pick: 

*       A man who trusts in God when God tells him to do something monstrous and utterly self-defeating because he’s certain God will somehow prevent the monstrosity from occurring and is therefore willing to follow God up to the brink. 

*       A man who values obedience more than he does his own son or his obligations to his own family. 

*       A man who’s too scared of God to think through to any consequences when God gives him an order. 

*       A man who grows along with God, or grows in his understanding of God. 

          Now I could run these down the way I ran down the ways the story makes God look, but you get the idea by now.  Either they make Abraham look bad or they make God look bad or both. 

          It would be easy to stop here, draw a line between ourselves and the story, and say that however regrettable it may have been that there were once people who thought this was admirable stuff, we respectfully differ, and conclude that this story has nothing to tell us. 

          Then why does the story continue to resonate?  Why does that reaction feel so incomplete?  I think it’s because, one way or another, we know a little bit about sacrificing our sons and daughters in this society. 

          Of course you can’t find – or at least I hope you can’t find – altars anywhere where fathers take the knife to their sons in honor of their gods.  No one believes any more that God demands human sacrifice.  So we are never confronted with Abraham’s dilemma: human decency and family love versus compliance with divine will. 

          But sometimes we are still asked to sacrifice our children.  God knows; God the Father did that very thing.  This is of course the stuff of nightmares.  Children should bury their parents, not the other way around; that is the way it is supposed to be.  But we all know that sometimes there are times when someone must sacrifice not merely himself or herself (which would be comparatively easy), for the good of the rest of us.  Instead, one is called upon to sacrifice someone else.  And for someone with a proper moral sense, that is far more excruciating; for a parent with family ties, it is almost unimaginable.  And yet it happens.  These dreadful situations may arise in emergencies – floods or fires or 9/11 situations.  And typically it is the young who are called upon there.  They may be first responders or they may just be the people who can do good at the risk of their own lives. 

          Bad as this is for the parents, this usually provokes all the grief afterwards; Abraham’s dilemma occurred before Isaac nearly died.  And we do have an analogy to that, too, unfortunately, one which is occurring with greater frequency all the time: when we as a nation and as individual parents contemplate sending our children off to war.  This is very much a generational thing.  As folksinger Phil Ochs sang back during Vietnam: “It’s always the old who lead us to the war/ Always the young to fall.” 

          Of course, nowadays in this country, we sanitize the process by having a volunteer army.  That means that every potential Isaac is partly complicit in what happens to him or her – just what our pastor theorized a few Sundays ago was true in the near-sacrifice of the biblical Isaac.  We dress them up in striking uniforms and we make much of their growth and their maturity, and we usher them into the machinery of possible death with respect.  And their wishes for themselves and our wishes for them grow too mixed up to say where the one ends and the other begins. 

          And it provides every Abraham among us with plausible deniability.  And it also presents a more reasonable dilemma. 

          The choice is not between God’s will and the love of our families, it is between national security, justice, the international order, democracy, freedom – what have you – and the love of our families.  And most of us would agree that sacrifices of that sort are indeed indispensable at times.  The fathers and mothers who grieved over their children who fell in the Revolution or World War II, for instance, could at least look back and say that the sacrifice had been worth it, and that the assent they may have given to their children’s decision to put themselves in harm’s way had been justified and remained justified.  Sometimes it is fitting and proper for Abraham and Sarah to assent to the potential sacrifice of their son. 

          The agonizing dilemma for today’s Abrahams and Sarahs is that we don’t have assurances going into a war.  Mary my wife was at a conference with an acquaintance the very day that woman’s son fell in Iraq.  A year later, Tracy, the acquaintance, spoke to Mary of the fog of grief that descended over her.  The only time anyone should ever have to face that fog of grief is in a war that is well-justified.

          This gets us into the just-war doctrine.  The summaries all run like this: 

•        There must be rigorous consideration of the moral legitimacy of the proposed war;

•        the damage inflicted by the other side upon us must be lasting, grave, and certain;

•        all other means of putting an end to it must have been shown to be impractical or ineffective;

•        there must be serious prospects of success;

•        the use of arms must not produce evils and disorders graver than the evil to be eliminated. 

          And right now, every day, we sacrifice our Isaacs in another land.  And the question we Abrahams and Sarahs must ask ourselves is: did we and our leaders satisfy ourselves up front that the war we sent them off to met these criteria? 

          Was there rigorous consideration of the moral legitimacy of the war?  Was there rigorous consideration of anything at all? 

          Had the other side committed lasting, grave or certain damage upon us? 

          Were the other means of putting an end to that damage really impractical or ineffective? 

          How reasonable were our expectations of success? 

          How likely was it, given our strategies, that the evils and disorders we would produce would not dwarf the evils we sought to suppress? 

          These are the questions.  And they are rendered the more agonizing because they require foresight, and foresight is always blurred.  We don’t even have the luxury, the definiteness, of God telling us, “kill me a son.”  Which actually intensifies the agony of the choices we as parents make, typically in collaboration with our children, in this regard.  We may all be acting like monsters.  Or like heroes.  We must choose very, very carefully. 

          I want to end up showing you some photos of some local Isaacs: youngsters from Maryland who have perished in our current war.  Whatever we may think of the war in which they fell, we can have nothing but admiration and respect for their sacrifice.  But what of us?  We are all of us Abraham.  In sacrificing them, did we choose aright?

To Be A Lawyer and a Believer: A Two-Part Series

Part 1: Lawyer

 Originally Published in the Maryland Daily Record

            After we leave our places of worship, we lawyers don’t usually talk about our faith much.  There are lots of reasons why.  Maybe the biggest is the disconnect between the way the faithful think and the way lawyers usually do.  Always the pressure on lawyers is to pinpoint the authority for our position, to point to something hard and durable, something objectively verifiable: authoritative precedent, a line of deposition transcript, a clause in a contract, a phrase in a statute, a principle in a written constitution. 

            For believers — at least for those to whom scripture is a starting point but not a user’s manual for life — it can never be that way: we intuit God in a chain of events, in a feeling inside when we sing a hymn, in something (or is it Someone?) ineffable that occurs as we rub shoulders with fellow believers or pray silently.  We sense God, all right, but we can’t prove God or pin God down.  God is not tame: God could be anywhere at any given moment, but will not be palpably there to check with when you come back later the way a West headnote will always be there.  In this sense, the experience of God is not very lawyerly.  And it’s disconcerting to drop the a priori style of thought and discourse lawyers are trained in, to articulate convictions that just are, and may not be based on anything objective.  Easier not to talk about it, treat faith as one’s little secret. 

            And at the same time, being a lawyer in and of itself raises the suspicion of other believers.  To other faithful souls, we lawyers appear far too worldly for our own good.  And the law thing we do — that’s commonly perceived as having little to do with justice, which is of much greater interest to most believers.  And then there are the material rewards that come to many of us, calculated to draw our attention away from more transcendent and important objects.  So what makes us think we belong in the community of the faithful, really?  If humanity is screened through the eye of the needle en route to heaven, and the well off are least fitted for the process (Matthew 19:24), what are the chances we’ll get through?  

            In short, our dual citizenship is apt to alienate us somewhat from either world. 

            Trying to hold both passports myself (born and raised Catholic, an attorney since 1981), I have experienced this.  And being (people tell me) less reticent than some about bringing up difficult subjects, I thought I’d share a few insights my situation, both blessing and predicament, has afforded me. 

            Let me start with this.  Most kinds of believers agree that a real and personal God has created, interacted with and continues to interact with us individually and also with human history, and that this God loves and makes demand upon each of us.  Most of us believe that the God who created all natural laws can and sometimes does suspend them. And most believers would also agree that God is in our midst and we in God’s.  To put it another way: There is no secular, and there is no sacred.  The holy and the profane, the miraculous and the mundane: it’s all the same stuff. 

            A consequence of this sense that sacred and secular interpenetrate is that for us there’s no division between what we do as believers and what we do as lawyers.  For me, this cuts both ways.  Belief informs my views of law practice, and my legal experiences have a great impact on my faith.  In the first part of this essay, I want to talk about the way in which belief influences my views of my profession.  Next time I will talk about the influences going the other way. 

            First, the easy part.  The kind of ethics that my faith and pretty much everyone else’s urge – truth-telling, treating others with respect, not stealing – are all reflected in the Code of Professional Responsibility, and if you internalize the first, you’re not going to have much trouble dealing with the second.  Despite the largely undeserved bad reputation for dishonesty we lawyers suffer from, most of us acknowledge this code and the Code, and there’s no conflict in that area.  A word of obvious caution here: we believers are no more likely to live up to our ideals, personal or professional, than anyone else.  This is about how we believers understand our responsibilities, not how well we as a group or certainly I as an individual live up to them. 

            The more interesting conflicts start when you’re forced to take sides in negotiations and disputes.  My particular faith is not thrilled with disputes, with disharmony between people, with self-seeking to the detriment of one’s neighbor or, worse, the common good.  (See St. Paul’s distrust of lawsuits in 1 Cor. 6.)  By lending myself to one side in a “case or controversy,” by putting forward only one point of view regardless of the merits of the other side’s view or of the common good, I am quite arguably at odds with the outlook of my faith.  After all, what about the importance and dignity of the side I am opposing? 

            C.S. Lewis said it very well in his great sermon The Weight of Glory: “There are no ordinary people. You have never talked to a mere mortal . . .  It is immortals whom we joke with, work with, marry, snub, and exploit. . . . Next to the Blessed Sacrament itself, your neighbor is the holiest object presented to your senses.” The Society of Friends, or Quakers, say the same thing, I think, in their maxim that “There is that of God in every man.”  And though I do not always live up to this view, I agree with it.  How can I, then, oppose the interests of anyone? 

            I have to start answering this question by reminding myself that my neighbor can be at one and the same time both divine and wrong about certain things.  I remind myself that God has for some reason placed us in a world where there is constant dissension and competition among even those creatures created in God’s likeness.  There had better be some kind of system for ironing these things out (exactly as there had better be a system for curing the disease God has also allowed in our midst), and there had better be people like me who specialize in making that system work. 

            Fine, but does that mean this system, where advocates compete to put the best face on each side, where dueling biased views are presented as bases for resolving disputes?  I think it does.  While I lack the hubris to say ours is necessarily the best system – and like any thinking person I certainly object to many aspects of the way it is run – I do believe this system is, spiritually speaking, adequate.  There is always a finder of fact and law, be it judge, arbitrator, or jury, who has the responsibility of looking out for the ultimate truth and the just solution.  And that finder gets the last word.  Meanwhile, and no matter how counterintuitive it might be, the finder observably benefits from the interplay of the biased presentations.  The apparently uncontrolled dialectic of partial views somehow leads to an impartial synthesis that usually gets it whole and gets it right.  By taking one side, therefore, I may help all sides get past a dispute. 

            I also don’t want to overstate the one-sidedness in advocacy.  The most effective advocates try to foresee what the referee, the judge, jury, or arbitrator, will demand and will think, and not advocate things that the referee will reasonably reject as nonsense.  They also recognize a responsibility to the common weal that conditions and informs their loyalty to any client.  Together these tendencies keep them from grossly misleading any party to the process, especially the referee.  I have never felt that the role of advocate made a liar of me. 

            In sum, I do not necessarily do violence to the immeasurable dignity of every other man and woman, or of the society of which we are all a part, by taking the part of some of them against others of them.  In the end, we are all equal in God’s eyes, I am quite sure, but after much thinking I have concluded that this does not mean I cannot be partisan at certain times and for certain purposes. 

            But let’s pull back further.  Most believers, I among them, derive from their estimate of human divinity certain conclusions about the way law should structure society.  Actually, certain competing conclusions.  

            To illustrate, my Church has advocated a “preferential option for the poor,” meaning we are urged to try to steer social policy in the direction of alleviating the burdens of the needy.  Some quantum of property seems to be critical to the fully realized life of any and all human beings, and the absence of property literally defines (though it does not by any means fully capture) poverty.  Thus, part of a program of according the poor the more fully realized life their dignity demands would seem to indicate seeing to it that the poor get more property than they presently possess. 

            But we need to be careful about this.  The world’s poor are so very numerous that satisfying their property needs on a wholesale basis would inevitably require mass transfers of wealth which would certainly trench on the property rights of those who have much.  Property is itself a specifically legal construct: a bundle of rights to various tangible and intangible things which the law will enforce.  To effect such a transfer would therefore require amending the law. But amend the law and destroy property rights, and we will also destroy the incentive system dependent on those rights.  And that incentive system drives commerce without which there is no property for anyone, never mind for all. As lawyers, accustomed to dealing with the very world of wealth and commerce that makes some fellow-believers so suspicious, we understand this full well.  All else being equal, we know, mass property transfers would therefore simply make everyone poor and not achieve the desired end, the demise of poverty, but tend in fact in the opposite direction, making poverty even wider-spread.  (A classic recent example is the forced land transfers in Zimbabwe, which have largely destroyed agriculture there.) Which is why religious belief does not make socialists of most believers, and especially not of the lawyers among us. 

            All the same, when the legal systems we presently have – and in one way or another they are worldwide – routinely support the existence of large pockets of the poverty, most faiths still say that something is very wrong.  Maybe outright redistribution in the teeth of both legal title and market forces won’t solve the problem, but that doesn’t mean there’s no problem or that we don’t have to worry about solving it.  We are called upon to address at least the effects of poverty, and better yet the causes. 

            Addressing the effects, for a lawyer, certainly includes representational pro bono work, generally recognized in the profession as a moral obligation for each of us.  It probably means donating to charities as well.  Addressing the causes calls for political action, in which we lawyers must also be concerned, though as much in our status as individual citizens as in our status as attorneys.  But as we know the most about the laws, and as the laws are intimately involved in the problem, we ought to be using that expertise in the project of bettering the laws. Which is perhaps a bloodless way of saying that each of us believing lawyers needs to break off a chunk of the laws that are responsible for poverty and try to do something about it. 

            It is a similar story with the over-militarization of the world and the ongoing destruction of the environment.  Most believers recognize the wrongness in the way these things have developed, and most recognize the special role of law in perpetuating the wrongness.  We lawyers thus must play a special role in the fix. 

            But in contemplating that role, we must recognize that uncompromising rejection of the status quo is not an intelligent or productive alternative, either.  Armies exist and are used for good reasons as well as bad, and we humans cannot simply turn on a dime and stop all destructive and unsustainable activities on this planet.  So a rigid “no” is no more correct or religious an alternative than uncompromising acceptance.  

            Faith, then, calls for an uneasy maturity.  We cannot be complacent or resigned, either as lawyers or citizens, and indeed our faith calls us to critique our system and its laws from a profoundly humane perspective.  Most faiths teach that the world is imperfect (a Fallen World is the phrase I learned in my tradition), and that the divine plan and destiny is for a better one, a juster one, a safer one.  We must hang onto and try to bring about that vision, recognizing, as we do so, that our present system is not the unalloyed result of sheer stupidity or evil by any means.  Our faith should never allow us much comfort; while on the other hand our legal training should never permit us to overdose on discontent. 

            Critiquing our world and trying to improve it, we must sort out wheat and chaff as best we can.  It isn’t easy, and there are no guarantees we will do it well or successfully.  But for lawyer-believers, sorting it out and then acting on what we see — that is our task.

Your Author, at a slightly younger age, perusing The Times of London

Laudator Temporis Acti
(“One Who Praises Bygone Times”)
Horace, Ars Poetica

The Times, they are definitely bygone, or, if not bygone, doggone near bygone. The Seattle Times and the Asheville Citizen-Times and the Los Angeles Times and The Roanoke Times and The St. Petersburg Times and all the other Timeses, Intelligencers, Posts, Standards, Newses, Courants and Gazettes – all are in trouble. Newsroom staffs are laid off (the Baltimore Examiner’s demise was announced three weeks ago), sections are pared (the end of the Washington Post Book World section was announced the same week), and most major surviving metropolitan dailies arrive on the doorstep shrunk down to pitiful shadows of their former selves, with no guarantees at all that the shrinking will stop short of the moment when there’s nothing left and they stop arriving at all.

Foreign bureaus are long gone, ad revenues are sapped by the depletion in the ranks of advertisers (department stores and auto dealers, the most important advertisers, themselves being on the critical list), the classifieds have fled to Craigslist, whole subject-areas are abandoned. Out-of-town news is supplied mainly by other papers in national chains or by wire service. Opening the paper, an experience that once was the commencement of a feast for the hungry mind, has become more like sitting down at a dinner party in a family most of whose members are deceased, leaving nothing but aged and frail survivors behind.

It seems clear that the newsprint broadsheet, produced by an independent staff, devoted to all subjects from international doings to neighborhood events, from culture to sports to business, featuring modest but perennial entertainments like crosswords, advice to the lovelorn, recipes and comic strips, and open to public input in the form of letters to the editor – will survive, if at all, in a few protected strongholds, like redwoods in a state park. For the most part, it will vanish from the scene.

I observed as much over a recent lunch with a family member of mine, a smart and conscientious young man whose attention to current affairs exceeds even my own, and was met with a shrug. “It’s not as if I’m not gonna get my news,” he said. “I log onto the Huffington Post to start each day, to see what Arianna’s got for me, and then I check out some regular news websites.”

Doesn’t he miss having all the different ingredients together in one place?, I ask. Not really. Doesn’t he worry about the decline in journalistic standards, as the credentialing and ethics-setting functions of the papers go untended? He thinks about that – yes, a bit. But he has a faith that marketplaces will always deliver what people want, and if they want solid journalistic standards, they will receive them.

I tell him I’m not so sure. The old system insured that journalists got paid. The new system, blogs and websites from historical news organizations like papers and television networks with banner ads, reportedly cannot match the revenues that used to accrue from paid advertising and paid subscriptions. So who assures commensurate pay for Web journalists?

And that money matters. It’s all very well to talk in a grand abstract way about the marketplace supplying people what they want. But standards cost. Will the motivation really be there to produce well-sourced, properly researched, and intelligently edited reportage? The reality is, you get what you pay for, no matter what you might want. Another reality is, when business models change, good things don’t always just change format; some become unavailable. When I was quite young, for instance, I crossed the ocean three times on liners. I can still cruise, of course, and I can still cross the ocean, but the wonderful leisurely experience of steamship travel as utilitarian transport is gone. Likewise, if I want a Web-based replacement for the system of credentialed and trained reporters the newspapers used to provide, working in newsrooms that pass on the norms of a professional journalistic culture – well, I probably can go whistle for it, for all the good it’s going to do me.

You can argue, of course, that there is a tradeoff – that in exchange for losing the enforcement of standards made possible by the relative centralization of the old papers, we also enfranchise anyone, anyone who desires, to become his or her own paper. This breaks the iron grip of the old law that freedom of the press belongs to anyone who owns a press – with the silent corollary that it belongs to no one who does not own a press. But I’m not saying nothing’s gained. I’m just saying something’s lost.

Another shrug after I make these observations. To a young man who watches his movies and makes his friends on a computer, this all does not seem like a stunning loss.

Besides, I say, newspapers have a constitutional function. The young man, a law student, just looks at me. For once, even I know I’m blowing hot air and sounding like a fogey.

The products of the press whose freedom the Founders guaranteed when they wrote the First Amendment were nothing like the encyclopedic metropolitan dailies I miss from my youth. Eighteenth Century papers typically combined almanac-type features with primitive and highly partisan editorial-page commentary. It was the dialogue among commentators the Founders sought to protect, along with the squabbling among the pamphleteers and scribblers who worked in other media. The newspaper as an actual source of current news did not really get going until early in the following century. To be sure, the news in the great newspapers of the next two centuries was an invaluable adjunct to First Amendment values. And so were the ethics and the fact-checking and the aspiration toward a balanced editorial tone that came up along with them

But no one can seriously maintain that the blogosphere and the Web presence of conventional journalistic organizations leave the public either uninformed or unexposed to the interplay of political ideas. Nor can one simply ignore the size and importance of the news-gathering organizations made available by cable and satellite.

One could argue that the shared experience within communities which all subscribed to the local paper and were thus exposed to the same body of information and entertainment promoted citizenship, and a shared basis for dialogue, and that this too was of great civic value, a value tantamount to a constitutional one. A moment’s thought, though, shows that won’t fly. The constitutional impetus is toward diversity of ideas and experiences, exactly what the monopolistic homogenized local news experience militates against. True, people tend to gravitate to the websites and networks that slant the news according to their preconceptions. But the Founders framed no “fairness doctrine” when they wrote the First Amendment. And as to the shared local experience, cosmopolitanism beats provincialism in my book, every time.

Then what exactly is it whose passing I so lament? It’s mostly about aesthetics and convenience, I decide. The experience of opening a newspaper, turning to one’s favorite places, and gradually digesting the whole, whether propped up in bed, over breakfast cereal, or on a commuter train, the fun of frequenting newsstands, the gaudy display of vending boxes on a street corner – those things are not replaceable. The convenience of having other people digest the whole package for me and providing it in an assembled, portable form, is even more important. I don’t want to have to be enterprising to locate my news and my comics and my want ads and my editorials and my sports; I want it gathered, edited, printed, and handed to me on a big piece of paper.

But still. I also remember my stepdad and mom resisting for years the pressure from the phone company to direct dial their long distance calls. Having an operator do it for them was important to them for some reason that now escapes me entirely.

Will my attachment to newspapers escape my kids in similar fashion? You can almost bet on it. The sun may be setting on the newsprint era. But when it sets somewhere, it rises somewhere else. The trouble is, I happen to like it where the sun’s setting.

Let’s start with a few facts. As of this writing, on the last day of the Bush Administration, there are 247 detainees at Guantanamo, 16 of them designated “high value.” The detainees constitute roughly a third of the group of Muslim men who have been herded into the facility since 2002. A handful have died there, and the remainder have been “transferred,” which can mean either released from captivity in their native country or remanded to captivity somewhere other than the United States. Most of the transfers have been at the discretion of the authorities who run Guantanamo. Increasingly, however, judges, including one initially quite sympathetic to the Guantanamo operation, have been ordering detainees released. Of those who have been released, (wildly inconsistent) government reports notwithstanding, almost none have “returned to the battlefield” in any meaningful way. (Government statistics include in that category people whose “return” consisted of giving reports critical of Guantanamo to the press, or similarly unwarlike activities.)

President Obama tells us he intends to close Guantanamo. There has been a lot of unspecific discussion of how complicated this is. The reality is, it may be less complicated than meets the eye, at least with the great majority of the detainees. The first thing to do is clear our heads of the phony war paradigm the outgoing administration fostered. Except in the combat zones of Iraq and Afghanistan, this has never been a war. And practically no one at Guantanamo was captured on a battlefield, or by U.S. troops. These are not POWs but captured civilians. And the reason we captured and held them was we suspected they were part of an international criminal conspiracy, not an army. (A 2007 study by the Seton Hall Law Center for Policy and Research concluded that, based on the Defense Department’s own statistics, only 8% of detainees were characterized as having been “fighters” – even for Al Quaeda. Only one single detainee had ever been captured on a recognized battlefield.)

Hence Guantanamo has always been, and should always have been acknowledged to be, primarily a place where we kept criminal suspects. In many cases, the suspects have been maintained there for six years. These suspects have been continuously available for interrogation the entire time. For most of those six years, procedures have existed to try these suspects, and yet almost none of them have been tried. What they received instead were “Combatant Status Review Tribunals,” which concluded that almost all of them were combatants. The spate of judicial release orders just mentioned indicates that that assessment seems flawed both procedurally and substantively.

The bottom line is that we should have been using a criminal law paradigm for dealing with the detainees all along, and we certainly should start doing it now.

Very well. If we do not have a prosecutable case against most of them after six years, it seems unlikely we ever will. There may be instances where the torture that was practiced on them or others – and even the convening authority of the Guantanamo military commissions, Susan Crawford, admitted in an interview with Bob Woodward the other day that torture was the correct word for their handling, even when “approved techniques” and not waterboarding were used – has left us with the strange dilemma that whatever crimes we think they committed once upon a time, we may find it impossible to proved, because torture evidence is unreliable and inadmissible. But even so, other criminal law principles also begin to grow insistent after so long.

In our criminal law system, we do not detain people indefinitely on suspicion. So the decision to be made for almost all of them is prosecution or release. The venue for prosecution of any detainee we think fit to prosecute should be the U.S. mainland courts. Military commissions are completely discredited and distrusted at this point (for reasons that could fill up a couple of articles) and have moved so slowly that few of the detainees could expect a trial in their lifetimes there at the current pace. Courts martial have a focus on military law and military personnel. U.S. Article III courts, however, are the customary venue for trying cases against alleged civilian criminal conspirators. We should go there. There has been all sorts of concern expressed from the beginning of the Cheneydominated Bush security regime that courts would be unable to protect classified information, that detainees would make use of their subpoena power to inconvenience the courts, that the courts would be unable to cope with the size of the caseload imposed upon them, etc. It may come as a surprise to readers who have been overawed by the Cheney propaganda, but the fact is, U.S. courts have procedures for handling classified information in criminal prosecutions, the Classified Information Procedures Act. Courts have always known how to control abuse of the subpoena power. And it seems unlikely that there are going to be many prosecutions at all, so the floodgates problem is just not likely to arise.

After six years, there should be a viable case against the rank-and-file detainees. If not, it’s time to release them. I strongly suspect we shall release most of them promptly. Where they can go back to their home countries safely, we should send them there. If we cannot, we should try to find somewhere else to send them. If that too fails, we should take them in ourselves. We broke it; we bought it. Of course, we should have the FBI keep a good eye on them once they are released.

In opening, I mentioned the 16 “high value detainees.” These are the masterminds and senior operatives of the African embassy bombings, the Cole attack, and 9/11. By contrast to most of the detainees, these are truly dangerous people. You can view DOD profiles of 14 of them at http://www.defenselink.mil/pdf/detaineebiographies1.pdf.

My recommendation for these is almost the same as for the “small fry” detainees: try them. I would only strike the “release them” alternative – at least for the moment. I would think no Assistant U.S. Attorney worth his or her salt would have the slightest problem convincing a judge any one of these people would pose a flight risk, so obtaining pretrial detention should be no problem, so long as it doesn’t become a substitution for a sentence.

Admittedly, the contamination of evidence by torture is apt to be a big problem with trying these individuals, and the threat of disclosure of classified information is at its greatest with them, too. But surely, with decent lawyering by a crack prosecution team, we could assemble “clean” cases and overcome these obstacles. Maybe a few spies would have to come out of the cold in order to testify. But sometimes the convictions are important enough to justify it, and these may well be such times.

We can be sure of this: the world not only wants Guantanamo closed, it wants the bad guys tried. They haunt everyone’s nightmares. The problem is, as American behavior grew nearly as ugly as that of the bad guys, we began haunting the world’s nightmares too. Trying bad guys in public according to the rules is part of what makes us us, part of what makes the rest of the world trust us. For everyone’s sake, we need to get that back.

See? That really wasn’t so complicated.

The Peter Bell Phenomenon

In the midst of graduate school at Hopkins, I discovered that I had one set of reasons for being there, and my professors had an altogether different set of reasons for asking me to be there. My dissertation, on the novelist Kingsley Amis, was an effort to fulfill my own objectives in studying and teaching English literature; The Peter Bell Phenomenon was an effort to satisfy those of my professors. My interest, in minor genres, and in an empirical, untheoretical approach to texts, stood in direct contradiction to my professors’ interest, which was in highly theoretical criticism of texts firmly seated in the approved canon. To satisfy them, I in effect wrote a second dissertation, one that dealt with not just Wordsworth, but Keats, Shelley, and Byron, and a slough of associated figures as well. The work was good enough so that three published learned journal articles were successfully carved out of it. But at the end of the day, however major the poets involved, I was writing about minor works, and really this was a work of scholarship, not of criticism. Given these ineluctable facts, I predictably and utterly failed to impress my professors with Peter, a bit of which I presented (if memory serves) at an excruciating ritual known as Journal Club.

Rereading this manuscript 34 years after I completed it, I’m struck with the thought that only a young man with nearly unlimited energy could have done this at the same time as he produced a dissertation on an unrelated subject. Understand, the minimum number of years in the program to a doctorate was four. Most graduate students struggle to get through one dissertation in that period, and many of my peers had to take an extra year or two. I bagged my doctorate in four years, having done both projects. Of course, some of my peers, having played departmental politics rather better than I did, ended up as academics. By contrast, my own academic career ended almost immediately thereafter.

Although I wept actual tears when I realized my academic career was over, I have never since that time much regretted that failure. Rather, I regret the attempt. Law school was my true path. I wish I could have had those four years back. Not that they were worthless. Four years in intense pursuit of any intellectual training will always be worth something. Still, those years could have been much better spent.

The manuscript itself remains, however. It has sat in my drawer for half a lifetime. I know that the scholarship is dated, and likely outmoded in various ways, but I still think it makes a contribution. I still think my professors were worse than idiots not to champion it. But it was not realistic to try publishing it before now.

When I put the book together, one would have needed the cooperation of a university press to publish it. And without the prestigious backing of my Hopkins patrons, or that of the academic department I never got to join, such cooperation was obviously not going to be available to me. Blogs have handed the artillery of publication to us scribblers, however, and it is high time I took advantage of it. So I offer Peter to the world now. Hopefully, the self-indexing properties of the Web will enable it to find its way to scholars who may find some use for it.

I apologize in advance for the state of the typography. This was done with the latest 1975 technology: an IBM Selectric typewriter, on onionskin paper, and heavily corrected with Wite-Out. Some illegibility resulted, and some errors, typographical and doubtless of other sorts as well, crept through notwithstanding. And it would be nice to have the notes on the same page, or even in the same part of the manuscript, as the text. Perhaps some day I can pay an amanuensis to slick-ify the presentation. Even unslick-ified, it is legible enough, and, hopefully, readable enough.

If you like satire, if you like politics, if you like infighting and pseudonyms and catty remarks made great people about other great people, even if you simply like seeing great poets in their less-great moments, dig in and enjoy!  (When you click on the link, have patience with the length of the download; this is a large file.)

Richard II: Shakespeare’s Legal Brief

This paper, produced as a term paper in an independent study course in law school, was published in the Georgetown Law Journal in 1982.  To my great pleasure, other scholars still cite it from time to time.  Let me again thank my supervisor, Professor Alice Brumbaugh, Emerita of the University of Maryland School of Law, for shepherding this one-of-a-kind project through.

And a hint: Set your browser at 150% zoom for ease of reading!

Richard II: Shakespeares’s Legal Brief on the Royal Prerogative and the Succession to the Throne

In 1954, Ernest Gohn, my stepfather, did three things that changed his life and mine. He married my mother, took a job in Ann Arbor, Michigan, to teach at the University there, and acquired a gorgeous tan Chevrolet Bel Air convertible. (A non-ragtop but otherwise nearly identical model is shown here.) My stepdad was not a materialistic guy in general; he was happiest teaching the poetry of Spenser, Milton and Dryden, and in most respects he looked down on America’s consumer culture. It speaks volumes, therefore, that this refined man would fall for wheels that were so exuberantly gaudy. He was living proof that Detroit in that era dictated the esthetics of even the most fastidious intellectuals.

Detroit had come through the UAW organizing struggles of the 1930s and the mobilization of World War II, and now it was entering its greatest glory: catering to U.S. families during the Baby Boom years. It was as brash and confident and exuberant as it was possible for an industry to be. I had been exposed to the world before these sheetmetal fantasies; having moved almost directly from Europe, where I had spent my earliest years, to Ann Arbor, I could remember the stodgy black sedans of postwar Opel and Peugeot back on the Continent. This stuff, the tan Bel Air and the neighbors’ two-tone blue-and-white Buick that shared a driveway with us, was much more exciting.

Detroit also dominated eastern horizon in my new home town. We couldn’t literally see the skyline, but the city, forty miles away, was an unseen presence, animating the economy, personal and collective. We all knew that cars made our world possible. Or not. I can remember Stan, a classmate in my parochial school, whispering to the teacher that he wouldn’t be back next semester, because his dad had been laid off from his assembly line job. And I had some opportunities to see it all up close. My father, an economist, came in to visit me and eagerly took me on the tour of the great Ford River Rouge plant. You could see glowing ingots coming in at one end of the complex and complete automobiles rolling off the assembly line at the other end. Alex Tremulis, a legendary car designer you can see portrayed in the movie Tucker, who worked on the Mustang for Ford, took my buddy Rob and me to the Detroit Auto Show at Cobo Hall, a dazzling experience.

And as the new things came out of Detroit, we were smitten. A next-door neighbor got a Corvair as soon as it came out, and I remember her driving me hell-for-leather around the countryside, proud as a peacock. My religion teacher in 1964 confessed without a snigger and without irony to being contrite for lustful anticipations of the Mustang he was about to buy. Of course, the cars didn’t stay looking sleek and finny and gleaming for long. This was before the era of effective rustproofing. Most cars got the rust leprosy fairly soon. First there would be spots and then, unless drastic measures were taken, there would be holes. The family Bel Air, before it got traded in in about 1962, developed a dangerous hole where you could look through the floor right next to the accelerator pedal. But hey, that kind of thing meant more trade-ins; Detroit was content.

During the summer of 1969, home from college for what would prove to be the last time, I took a job for a few weeks at the Ford Grove Street Plant in Ypsilanti, making shock absorbers. It was the hardest work I’ve ever done: pressured, destructive of one’s back, and boring beyond description. The template for personal relationships was clearly military. We saw no more of the managers than a private sees of the generals. The floor boss I reported to was obviously an NCO by temperament, the obnoxious hillbilly sergeant from a thousand movies. And we workers were disrespectful, mutinous, and strictly in it for the money. A colleague invited me over to his house after work and the expected social activity was to get drunk. There was no all-for-one, one-for-all spirit that reportedly motivates Japanese workers. In the brief time I was there, two jobs on my assembly line were taken over by robots. What loyalty could you give back to that? And a good part of our output was crap. There were two assembly lines for shocks. On mine they made shocks that were original equipment – not just in Ford’s cars, but sold to be installed in other makes as well. That line ran too fast, and we sometimes couldn’t get all the shocks off in time, and they’d be painted twice. We didn’t care. We’d take them off the line and jam them in packing crates, so many and so hard that frequently the bells broke right in front of us; no one ever suggested we take out the broken shocks. The other line was replacement shocks. It ran slower, there was never a repainting problem, and they were babied when they went into packing crates. Multiply this discrimination between original equipment and replacement equipment by the number of parts in a car, and you can see why the odds were so high you’d soon have something wrong with your vehicle after you got it home from the showroom. And Ford would be right there to sell you the replacement parts.

I spent the next twenty years building a life elsewhere (though I never have got rid of the paper that proclaims me a withdrawn member in good standing of UAW Local 735). I drove around Detroit in 1987, twenty years after the great July 1967 race riot, and the scars were still there. Block after block of houses torn down, boarded-up houses, wrecked houses, grinding poverty everywhere. And a surprising absence of people on the streets.

Over the years thereafter, as I’d come back to visit my parents, the drive from Detroit Metropolitan Airport to home would carry me past the Grove Street Plant, and it was reassuring to see it still standing there. Once I actually saw a shift coming off.

After my parents died, I’d still come back for high school class get-togethers. I noticed in recent years that the blue Ford oval had come off the plant. So last year I went out to check it out. The parking lot where I’d started my own working day was in shocking condition. Weeds grew through cracks. The watchtowers were boarded up. I talked to one guy, told him I worked here forty years ago, almost. No Ford oval any more, he tells me, because Ford spun off the plant along with Visteon, which sold out to Rawsonville, which sold out to Automotive Holdings, LLC. But all of it’s being outsourced now anyhow. They’re all getting buyouts, and the plant will be closed by 2009, completely gone, the parts made somewhere in Asia.

In October of this year I go back for another high school function. This time I drive east from Detroit Metro, into the heart of town. The scars from 1967 are a lot less visible. But nothing new has replaced what was lost. In the heart of downtown, you see no one but no one, in the middle of a business day. There seem to be only a couple of gleaming new towers, the Renaissance Center. You look up and you see the name GM written on them. Some renaissance! I make my way over to Woodward Avenue, the main drag, and point the car northwest in the direction of Pontiac. I’m going through one hollowed-out African American neighborhood after another. Then come the suburbs, Royal Oak and Bloomfield Hills. After all these years, I’ve arrived where the generals lived and still live. The suburbs still look lush and well kept, and full. But I can’t help wondering how long.

The wonderment increases later when I reflect on a conversation a year earlier with Bruce, who attended high school with me. A lawyer for one of the Big Three, he tells me he spends much of his time fighting fuel efficiency standards. Not fighting to get them accepted, or to accommodate his employer’s fleet to them. Just fighting them. And he believes in what he’s doing, heart and soul.

Detroit has had my whole lifetime to get this right, to stop making crap, to heal the class divisions in its workforce that sap quality, to achieve fuel efficiency. And what they have to show for it is a bombed-out town, a market that has passed them by, genetic oppositional defiant disorder when it comes to government regulation, and apparently a profound vulnerability to the financial climate change now upon us.

They beat the rust problem around 1980, incidentally. Interestingly, the Japanese still sell rusty cars in their domestic market. But they understood that to compete with the American nameplates, they had to rustproof their cars sold here. And that’s what they did. What it takes.

Copyright (c) Jack L. B. Gohn

The voters, as they say, have spoken. And, as often happens when one party emerges momentarily dominant, there is much discussion, not to say hand-wringing, over the plight and the fate of its opposite number.

It is interesting that in our country there is always only one opposite number. Why only one? According to political scientist Maurice Duverger, whom everyone cites on this subject, the development of two large parties was an unplanned effect of the two principles which apply almost everywhere in our system of elections that: a) the plurality wins, and b) the winner takes all. In consequence, unlike the tossing of hand grenades and horseshoes, an American election is an activity in which “almost” doesn’t count. Only one candidate, not two or three, is elected in most elections, even if three or more get large numbers of votes. Candidates and voters alike therefore face powerful incentives to pool their bets; voters cannot waste votes on candidates who are the “purest” representatives of narrow outlooks or interests, but must instead vote for candidates who manage to appeal to diverse coalitions of voters, the larger the better. The power of this logic is maximized with two candidates. And with such binary electoral choices come binary parties, large organized coalitions to support coalition candidates.

Despite these almost accidental beginnings, then, despite not even being mentioned or contemplated in the Constitution, our two major political parties have made themselves essential to the U.S. constitutional scheme. Without them, there probably would not be forces big enough, rich enough, and powerful enough to assure that the constitutional machinery establishing periodic turnovers in control of our elected branches would actually function. The oligarchy of two parties, complete with their respective primary systems, recruits, vets and legitimizes new candidates, and concentrates large forces of funding and electioneering to make them effective. Two parties are, in short, a handy thing to have.

And that is why even the most loyal Democrats would be right to care about the fate of the Republicans today.

Of course this is a perennial sport. I am just old enough to remember anxious editorials in 1964 and 1965 when it looked as if Lyndon Johnson’s Democrats had nearly wiped the GOP off the face of the earth. Yet Richard Nixon and Ronald Reagan breathed considerable vitality back into the “invalid,” giving it over three unexpected decades of near-dominance. Handwringing was then replaced by insane optimism. Karl Rove and Tom DeLay concluded from their momentary ascendancy that they had the makings of a Thousand-Year Republican Reich. Uh, not so much … Instead, the ruinous elections of 2006 and 2008 have nearly marginalized the Party once more. Yet it is inconceivable that the Republicans will not come back.

But first they will need (as they did in 1964) to reinvent themselves. It is therefore with bemusement that one reads the opening rounds of their internal debate in every newspaper and every blog, about what reinvention should entail. The predictable mistake one sees most continually repeated in these exchanges could be called “Back to the Future.” In this view, the Republicans, like the ancient Israelites driven into exile, brought this pickle upon themselves by being untrue to their divine teachings. They were faithless to their shibboleths of small government and low taxes. Had they not strayed, the feeling goes, had they kept government small and taxes low, they would all still be in office.

Well, not exactly. Small and ineffective governance was at the very root of our problems with Katrina, a fact the voters noted. Even the Bush Administration had to resort to big government remedies when dealing with the financial meltdown – another fact voters have noted. “Small government” Republicans have never had much of a pure faith anyway where it comes to the military. And the Republican deployment of our military and the various atrocities that had accompanied it had a great deal to do with putting the party in the national doghouse. Nor do any of the advocates for Republican reformation known to me seem to be suggesting that the party do a comprehensive about-face on its nastily anti-immigrant stance, even though that stance obviously lost the support of the fastest-growing demographic in the country today, Hispanic voters. No one seems to be suggesting that the party rethink who it wants in its “base,” even though by now the present version of that base (older, white religious conservatives and blue-collar workers) can no longer deliver national elections. The hope seems to be that somehow, by becoming more of what it was in the past, the party can recover its spark. The technical name for this kind of hope is “denial.”

The Republican Party will recover only when it embraces a much more fundamental change – when it recognizes that the electorate has changed and when it is willing to give the electorate what it demands.

We’ll know that moment has come when photos of Republican crowds look the way photos of Democratic crowds do today: diverse in age, diverse in ethnicity and race. A party whose attitudes make it almost lily-white will increasingly become a party in exile in the majority-minority America we are fast becoming.

We’ll know the Republicans are back when they show, through their platform and their public pronouncements, that they have broken the grip of the religious right, and stand with the larger number of more moderate Americans on matters such as abortion, contraception, the roles of women, and homosexuality.

We’ll know the Republicans are rebuilding when they change their cultural tune and stop associating obsessively with country music, NASCAR, and gun fetishism. The rural South is not the American heartland any more, and not where future elections will be won.

We’ll see the voters embracing Republican candidates again when the latter show they understand that global warming is real, is caused by human economic activities, and is the single most important issue of all, and that corporate profits and objectives cannot be allowed to trump the efforts to rescue the planet.

We can expect Republican majorities once more when Republican leaders publicly express some credible appreciation of the regulatory state and the taxes necessary to support it. This new Century will require alliances and worldwide cooperation. It will require our participation in and submission to international treaties and institutions. Republicans willing to commit us to that kind of cooperation will find favor with the electorate.

Phyllis Schlafly, doyenne of the Republican radical right, had it nearly right in 1964 when she called for “a choice, not an echo.” We certainly need a choice. And the parties should be meaningfully different. The problem right now is that today’s Republicans officially stand for something close to Schlafly’s substantive views, which are about as outmoded as flat-earth theory. There are certain premises that the majority of the electorate now shares, and will share for the foreseeable future, and in order to enter into the national dialogue the Republicans will have to adopt them, even if that moves them closer to Democratic orthodoxy. Within those premises, there is still room for choices that are not echoes. But the Republicans need to enter the consensus. Until they do, it will be a no-brainer for majorities to vote against them. There are Republicans who already recognize this. But such realism amounts to tearing out the very foundation of the party and starting all over – abandoning most of the characteristics that have distinguished the party from the Democrats for forty years. There are few signs the party is ready for this literally heart-rending task even now.

The electorate is likely to force it, however. It has to happen, and it will. And the sooner the better, not just for the GOP, but for us all

Caesar in the Wings?

On May 20, 2008, Michael Traynor rose to address the annual dinner of the American Law Institute at the Mayflower Hotel in Washington. Traynor, perhaps best known as the son of the estimable former Chief Judge of the California Supreme Court, had just completed an 8-year stint as president of the ALI. That organization is best known to practicing lawyers as the source of the Restatements which summarize the state of the law in a wide variety of areas, and as a force behind the various Uniform Acts proposed by the National Council of Commissioners on Uniform State Laws. It is an elite organization, filled with judges and legal scholars, and the essence of its mission is to discover and articulate the essence of American Law – and to help shape its future development. It is arguable that the ALI is as influential in the development of American law as the Supreme Court. The passing of the leadership of the ALI was therefore a notable occasion, and Traynor intended to make the most of it.

Traynor focused on two subjects: the ending of racial and other forms of invidious discrimination, and “the challenge that terrorism presents to both liberty and security.” It was his comments on the latter subject that raised eyebrows. He began by reciting in fairly compact form a litany of the kinds of abuses that have come about in recent years, including torture and governmental secrecy, and ending with “the assaults by your government on constitutional rights, the Separation of Power, and the Geneva Conventions.”

Reverting to torture and the degradation of captives, he observed that “this outrageous behavior did not ‘trickle up’ from unauthorized conduct by a few privates, corporals, and sergeants but instead was authorized, defended, and encouraged at the highest levels of our government…” He mentioned as well signing statements in which the President claims the right to ignore statutory mandates, indefinite detention and resistance to habeas corpus, illegal surveillance, and the sending of ill-equipped troops into the field, and the failure to give them “caring, competent, and sustained medical attention” when they were wounded.

Traynor also observed that during this debacle “Congress and the American public were uninformed, fearful, and unengaged, and they let themselves be deceived.” He also singled out the media for “[falling] down on the job.” Finally, he deplored the dishonesty and secrecy with which these abuses were carried out.

Traynor’s direct speech met with some disapproval, but it probably articulated the verdict of the majority of the American legal community on presidential absolutism in a time of terrorism and war.

Traynor’s proposed solution, “an engaged citizenry,” sounds good, but it is probably nowhere near good enough. As explored in a series of 25 pieces I wrote in these pages in the past few years, we have reached a situation where, in matters of war, peace, and national security, there are few realistic means of stopping a president who is intent on doing things his or her own way. There are checks and balances available – the courts and Congress, independent Executive agencies or parts of agencies (like the Department of Justice). If the president suffers these branches of government to check him or her, then the president will stand checked. But the present administration has given us an 8-year tutorial on the invincibility of a determined presidency. Institutions that should serve as checks and balances will generally be too little and address the issues too late.

We have become like Rome at the moment before the Emperors destroyed the Republic. At that point, one could see the Roman emperors crowding out the Senate, the tribunate, the consuls and proconsuls, the magistracy, and the committees, by measures like obtaining the power of appointment over these positions, or asserting veto power over their acts, or by simply assuming their titles. This ended their roles as separate powers within the republican government, subordinating everything to the emperor in his role of “dictator.”

“Dictator” was initially the formal title for an office tailored to cope with military emergencies. Dictators held plenary state powers, but – as a necessary check on their power – only for six months. There were hundreds of years of precedent of dictators laying down their plenary powers at or before the end of their term. But Julius Caesar wanted to be dictator in perpetuo, a title he caused to be inscribed on his coins in 44 B.C. , not coincidentally also the year of his assassination. Largely through seizing the power of appointment over all the other offices, he had assured that the title of dictator for life was accurate. Even though his own life was too short for him to use his concentrated powers long, he had found a route to dictatorship for life through a Roman constitutional maze designed to prevent it. This path he had crafted became a template for emperors to obtain the same kind of centralization of power enjoyed by the despised Roman kings who had been overthrown half a millennium earlier.

If Caesar had chosen not to embrace that kind of concentration of power, if he had recognized that checks and balances were vital to his nation’s health, odds are he personally would have remained healthy throughout 44 B.C., and a terrible turn in Roman constitutional culture might have been avoided into the bargain.

Our next president will be exposed to similar choices. Through the powers his predecessors have amassed, far in excess of what the Founders contemplated, and through the gathering of nearly a critical mass of Supreme Court justices willing to tolerate the kinds of misbehavior deplored by Traynor, the next president could seal the deal, and turn us into something like a dictatorship.

Or the next president could embrace the Founders’ notion of a multifaceted government, and allow the other branches and the independent parts of the Executive to resume their rightful roles.

It is hard to know what to expect.

John McCain, a former POW and torture victim, could be expected not to create new Abu Ghraibs and Guantanamos. But his public remarks suggest that he has a seriously deficient sense of checks and balances. On May 6 he gave a speech in which he hailed the constitutional balance of powers and said that the only thing wrong with the way it has been working in recent years has been the interference of activist judges with the Executive. As Glen Greenwald quickly pointed out in Salon, these were also the talking points of a November 2007 address by George Bush to the Federalist Society. Enough said.

Barack Obama certainly has the training and the intellect to appreciate the issues. He commented in March 2007 that: “I was a constitutional law professor, which means unlike the current president I actually respect the Constitution.” He made that remark while criticizing the firing of eight U.S. Attorneys, among the problems decried by Traynor. In October 2007 he said this: “We’ve paid a heavy price for having a president whose priority is expanding his own power. The Constitution is treated like a nuisance. . . . We get secret task forces, secret budgeting, slanted intelligence and the shameful smearing of people who speak out against the president’s policies.” So far, so good.

David Nather, a staffer at Congressional Quarterly, has probed Obama’s statements and record further, however, and he brings back some good news and some bad. “His campaign’s decision not to respond to a list of questions on specific subjects, such as war powers and signing statements, ensures that his views can remain vague.” Instead, we get glimpses. For instance, Obama said in December that he would call on his attorney general to review all Bush administration executive orders and review their constitutionality. He promised to close Guantanamo and adhere to the Geneva Conventions in detainee interrogations. He also has claimed a plan to consult with congressional leaders monthly about national security matters, and to keep them advised of pending military actions.

But Obama reportedly believes that the branches should work together; his imagination does not necessarily extend to their functioning divergently and as checks on each other. And known legal advisors of Obama’s, Laurence Tribe and Cass Sunstein (respectively), do not share Roger Traynor’s dismay at signing statements or military tribunals. Consequently, we do not yet have a clear picture of what would happen next if a President Obama were to tell congressional leaders he planned to bomb or invade some country or set up a new domestic spy program, and they were to express opposition. The sequel would be the truest and most vital test of whether Obama is inclined, like Caesar, to cross the constitutional Rubicon. And it matters, because if he wants to (and if he is elected), he probably can.

We citizens can only stay tuned. But it is high time to worry.